4 Wis. 150 | Wis. | 1856
The verdict in this case is entirely defective, in not finding the fact of the unj ust detention of the property by the defendant. Damages could not be assessed for detention, unless 'that fact was found by the jury. This was the main fact in issue; indeed, if the return of the clerk be correct, it was the only fact in issue.
The second plea of the defendant alleges the property to be in the plaintiff. This is probably a mere misprision of the clerk. It must be the error of the clerk who copied, or of the attorney who drew the plea. Be this as it may, it leaves the issue made by the first plea, non detinet, to be found. The j ury find the property to be in the plaintiff, assess its value, and damages for its detention, but fail to find that the defendant unjustly detained it. They doubtless intended to do so, and the counsel might have caused the verdict to be put in proper form at the time of its rendition. He did not do so, and we have no power to amend, it now. The defect was not, probably, noticed in the hurry of circuit business, and judgment was rendered against the defendant. The judgment must be reversed for this cause.
But there is another point made by the plaintiff in error, founded upon the refusal of the court to give the instructions asked for by the defendant below on the trial, and also upon exceptions taken to the instructions positively given by the court.
Inasmuch as the determination of the case does not depend upon a decision of the question made by the assignment of error, here alluded to, and as it was not made a subject of much discussion at bar, we do not feel called upon to consider the matter thereof, but will leave it to further discussion and consideration, should occasion hereafter require; and the more especially so, as the point was not argued on the hearing, and the briéfs of counsel are too indefinite and vague to enable the court to act advisedly upon a question so important in principle, and of such practical application in every day business transactions.
For the reasons first above given the judgment of the court below- must be reversed, and the cause remanded for further proceedings according to law.
