Griel v. Marks, Fitzpatrick & Co.

BRICKELL, J. All the exceptions reserved are to charges given by the court on the request of the appellees, who were defendants in the court below. We do not understand the appellants as questioning the correctness of the legal proposition asserted in the first of these charges; that, to sustain the action of trover, the plaintiff must prove property in himself, and a right to the possession at the time of conversion by the defendant. The error of the charge is supposed to lie in the fact, that it is based on a partial view of the evidence, and diverted the attention of the jury from the consideration of other evidence, tending to establish that appellants had possession of the cotton, and a lien, entitling them to retain until the lien was discharged. An instruction to the jury, requested, cannot be refused on this ground. If there was evidence tending to establish such facts, the appellants should have requested a charge based thereon. When the evidence is conflicting, each party has the right to request instructions based on the hypothesis his evidence tends to establish. There was evidence tending to prove the facts recited in the second and third charges. From that evidence, if believed by the jury, the legal conclusions asserted necessarily followed. The objections uged to these charges are near akin, if not identical with that taken to the first charge, which we have considered. The court did not err in giving these charges. The appellants could have cured any prejudice they might operate to them, if the jury credited the hypothesis their evidence tended to establish, by requesting charges adapted to that evidence. There is no error in the record, and the judgment is affirmed.