Lynch & Bowman v. Welsh

Gibson, C. J. Had the plaintiff below offered Brian’s execution to make title under it, it might not have been admissible without the judgment. To an action by the defendant on an execution against the sheriff, or his vendee, to recover the value of the property sold, the writ, without the judgment, furnishes a full defence, because it contains in itself an authority for what would also have been a trespass. But in an action by a previous purchaser from him, it is necessary to show the plaintiff in the execution, to have been a judgment creditor by the judgment itself, as the first step to prove the sale by the original owner to have been fraudulent by the 13 Eliz. So is the law laid down in Martyn v. Prodger, 2 Burr. 2631; S. P. [297] Bull. N. P. 243. But so far was the plaintiff below from claiming under Brian’s execution, that he offered it, as the defendant in it, to prove that the property had been seized as his, but restored to him on a-forthcoming bond, and never redelivered. The execution, therefore, was indisputably evidence as part of the res gesta. But the defendants prayed' direction that the. plaintiff could not recover on his possession without proof off property, general or special ; and the want of a separate and specific direction to that effect, is assigned as error. It is true, that replevin is different, in that particular, from trespass, which is founded on possession, and in which, the plaintiff’s title is not controvertible by a, third person, possession being itself a title against a wrongdoer. But it is equally true that possession is prima facie evidence of title even in replevin; and that where the right of property is not contested in the pleadings, it is conceded. - Here it was actually put in issue; and the judge put it before the jury, with proper explanation, as the pivot of the cause ; and he consequently excluded the plaintiff’s possession as any thing else than evidence of title. What matters it, then, that he made no special response to the prayer, since he answered it affirmatively by a general direction ? It is a mistake to suppose that every prayer must have a separate answer. The judge’s recognition of a parcel of disjointed propositions would give the jury little more instruction than the scattered leaves of the sibyl gave to .those who consulted her; and it certainly is not error in him to extract the law contained in them, and apply it in a connected form to the evidence. All the points, on which specific direction was prayed in relation to the wagon and team included in the bill of sale, were effectively ruled in the defendant’s favour; not indeed severally, but collectively, in the general and positive charge that the sale to the plaintiff was fraudulent and void in contemplation of law ; and the jury, it seems, have found this part of the case in conformity to it. Even had the judge not so ruled, the verdict would show that the defendants had not been injured by it, and preclude them from assigning the omission as error. Without further remark, therefore, I dismiss the subject of those prayers for specific direction, adapted to detached fragments of the case, which, as they lead to no view of the whole ground, serve but to complicate it and entrap the 'judge in a labyrinth. They are therefore not to be favoured. The controversy about the ownership of the new wagon, which is the matter in contest here, was put on its true ground. The wagon was ordered by the plaintiff; and, if paid for with his money, was his property. It was alleged, on strong evidence, however, that it [298] was paid for with the earnings of the old wagon and team; and as the fact was contested, it was properly left to the jury. Now these earnings, if the wagon were paid for with them, could be followed into it only by shoAving that the plaintiff had mala fide received and applied them; and that brought the inquiry back to the validity of the bill of sale. But the judge went the whole length of charging, that it was fraudulent in point of law; and that the fraud would taint the contract for the new wagon if it were paid for with the gains from the use of the team, and the old one. What more would the defendants have ? The law of the case was ruled in their favour; and if they received injustice, it was at the hands of the jury. Judgment affirmed.