Johnson v. Howe

The Opinion of the Court was delivered by

Purple, J.*

The appellant brought an action of replevin against the appellees in the Circuit Court of Jo Daviess county. The declaration is in the usual form, alleging that the defendant in the Court below detained one horse and halter, the property of the appellant.

The appellees pleaded

1. JV'on detinet,

2. Property in themselves;

3. Property in Henry T. Stoffer; and

4. Property in Stoffer and appellant jointly, and some other special pleas which it is unnecessary here to notice.

Several issues were made upon the pleas, and upon the trial of the cause, after having given evidence tending to prove property in himself,.the appellant offered to prove, for the purpose of showing an unlawful detention of the property, by one Jackson, who was in their employment, that the appellees gave a general order to their hands before the commencement of this suit, not to deliver the horse in controversy to the appellant, or to any one on his behalf. It had appeared from previous evidence, that appellees were keepers of a livery stable, and that, at or before the commencement of this suit, they had been keeping the horse for the appellant. The jury retired and returned the following verdict: “We, the jury, find a verdict for the defendants.” Whereupon, the counsel for the appellant requested the Court to direct the jury to retire, and find a verdict on all the issues presented by the pleadings. This was refused by the Court, and the clerk was directed to put the verdict in form, as follows: “We, the jury, find the issues for the defendants.” Upon this verdict being presented to the jury, some of them assented to it, and others stated to the Courts that they only found for the defendants on the first issue of non detinet. The counsel for the appellant then requested that the names of the jurors might be severally called, and that they might be severally inquired of whether this last was their verdict. The Court denied this application, and rendered a judgment against the appellant, and awarded a writ of retorno habendo. These facts all distinctly appear in the bill of exceptions in this case.

The principal assignments of error relied on in the case are, first, the rejection of the evidence offered by the appellant to prove the unlawful detention of the property; and, secondly, the refusal of the Court to allow the appellant to poll the jury.

The decision of the Court was erroneous upon both points. It was necessary for the appellant, in order to maintain the issue on his part, to prove that he was the owner of the property, and that the appellees unlawfully detained it. If the appellees gave orders to their servants not to deliver the property to appellant, or any person on his behalf, it cannot be doubted that this fact tended to prove a detention of the property by them. It is not'important that physical force should be used in order to constitute this unlawful detention, nor is a demand and refusal the only evidence thereof. In an action of trover, the demand and refusal does not constitute the conversion. It is only evidence of it. But this is not the only evidence to prove a conversion in an action of trover, or an unlawful detention in an action of replevin. It could scarcely be insisted, that if one to whom a horse had been loaned, instead of returning him according to contract, should attempt to run him from the country, and the first intelligence received by the owner should be, that he was actually absconding with his property, that such owner would would be bound, before he could properly procure a writ of replevin upon which to retake the same, to follow and overtake the wrong doer and formally demand his property. Most circumstances which, in the action of trover, would tend to prove a conversion, would, in replevin, have.the same tendency to prove an unlawful detention. . The evidence offered was improperly rejected.

The appellant had also an unquestionable right to inquire severally of the jurors, whether they agreed to the verdict as amended. He had that right on the return of the original verdict of the jury, and equally so'when it had been reduced to form, or amended under the direction of the Court. The first verdict rendered was simply “for the defendants.” It might have been upon one or all the issues. If, as some of the jurors stated when inquired of if they assented to the verdict, it had been found alone upon the first issue in the pleadings, the appellees would not have been entitled to the writ of retorno habendo, as awarded by the Court. They made no offer to prove any of their pleas. They showed no title to, or right of possession in themselves, or any other person to the property. Upon what pretence, then, can it be claimed that they are entitled to its return. From the evidence presented, the jury could not have found any- except the first issue for the appellees. It is apparent that the verdict, when amended or reduced to form, was not the verdict of the jury. But whether it was, or was not, is immaterial. Either party had the legal right to have the jury polled and ask them severally if it was their verdict.

The judgment of the Circuit Court is reversed with costs, and the cause remanded with directions to the Circuit Court to award a venire facias de novo.

Judgment reversed.

Wilson, C. J., and Lockwood J., did not sit in this case.