Sutherland v. Brace, 71 F. 469

Sutherland v. Brace

71 F. 469 | 7th Cir. | 1896

JENKINS, Circuit Judge,

after stating the facts, delivered the opinion of the court.

The objection that the action of replevin will not lie cannot be sustained. There would seem to have been some confusion in the decisions of the English courts whether replevin would lie in a case where there had been no unlawful taking. So uncertain were the holdings in the mother country that two great states came to diverse conclusions upon this subject. It was held in New York that the action lay only for goods unlawfully taken and detained (Pangburn v. Patridge, 7 Johns. 140; Barrett v. Warren, 3 Hill, 348); while, upon the other hand, the courts of Massachusetts held that at common law replevin was the proper remedy for goods unlawfully detained, without reference to the mode by which the possession had been acquired (Ilsley v. Stubbs, 5 Mass. 284; Badger v. Phinney, 15 Mass. 359; Baker v. Fales, 16 Mass. 147; Marston v. Baldwin, 17 Mass. 606). We think, however, that the keynote of the whole discussion was sounded by Lord Chief Justice Denman in Evans *472v. Elliott, 5 Adol. & E. 142, in the pithy and expressive declaration, “Every unlawful detention is a taking.” We need not, however, consume time by laborious search into ancient law, for the whole matter , is settled by statute in the various states, so that now in New York, as in Massachusetts, by statute the remedy is applied to cases of unlawful detention without respect to the mode by which possession was acquired. This statutory rule applies with but few • exceptions in all of the states; the states of Illinois, New Jersey, and South Carolina being numbered among the exceptions, and holding that the action will only lie when the taking was unlawful. The statute of Wisconsin (Rev. St. c. 123), under which this proceeding was had, provides that an action may lie when the property is wrongfully detained by the defendant, and may be prosecuted by one having a special property therein, the facts in respect to which shall be set forth. We understand that special property in a thing is that which gives a qualified or limited right thereto. Here, by the express provisions of the contract, the defendants in error had a lien upon the lumber manufactured from these logs for all amounts unpaid upon the contract, with the right to the possession upon failure of the plaintiff in error to carry out his part of the .contract, and they were given the right, upon taking such possession, to sell the property, and reimburse themselves the amount due them, rendering the balance to the plaintiff in error. If, therefore, they were entitled under the contract to the sum claimed, they had right to possession, and a refusal by the plaintiff in error of that possession, upon demand, made a" case of unlawful detention within the statute.

At the trial numerous instructions to the- jury were requested of the court by the plaintiff in error, and refused, and excepted to, and numerous exceptions were taken to portions' of the charge of the court to the jury, principally with reference to the construction of the contract, and with reference to the alleged custom in the light of which, it is said, the contract should be read. We are compelled to hold that these exceptions cannot properly be considered. The assignment of errors asserts that the court erred “in refusing to instruct the jury as requested by the said defendant, a copy of which instructions, so requested and refused, with the ruling of the court, and exceptions of the defendant thereto, is hereto annexed and marked ‘Exhibit A.’” Then follow seven different instructions, separately stated, properly numbered, and in numerical order. Another assignment of error is “that the court, in said trial, erred in instructing the jury as to those portions duly objected and excepted to by the defendant, a copy of said instructions, with the exception of the defendant thereto, being hereto annexed and marked ‘Exhibit B,’” which exhibit discloses some five portions of the charge, separately stated, properly numbered, and in numerical order. In Railroad Co. v. Mulligan, 14 C. C. A. 547, 67 Fed. 569, this court held that such an assignment of errors could not be considered. The writer dissented from the decision, but it is the ruling of the court, and must be followed. See, also, Vider *473v. O'Brien, 18 U. S. App. 711, 10 C. C. A. 385, 62 Fed. 326. If the practice ¡hereby established be deemed onerous and the rule declared ought to be rescinded, it can more certainly be done by strict adherence to the decision than by ignoring it. It is true that by vule 11 (47 Fed. vi.),1 the court is authorized, at its option, to notice a plain error not assigned according to the rule. We have, therefore, searched the record to ascertain if any such error exist, and we are free to say that, whatever criticism or technical objection may be fitly indulged with respect to the charge to the jury, we are of the opinion that the court below properly interpreted the contract and ¡'airly submitted to the jury the evidence with respect to the alleged custom in ihe light of which, it is said, this contract should be‘construed, and with respect to the acts of the parties thereunder. We observe no palpable error that would justify a departure from the rule as it has been construed by the court.

‘The judgment will be affirmed.