Bradley v. Gamelle

By the Court ElaNdeau, J. Eeplevin for Sioux halfbreed scrip. The scrip was issued to Sophia Eelix, previous to her marriage with David Gamelle. It is, upon its face, and by the act of Congress under which it issued, not assignable. It came into the hands of one Hurlburt, of Minneapolis, who sent it to Defendant to sell for him. The Defendant left it with one Lambert to sell for Hurlburt. While it was in the custody of Lambert, Gamelle and his wife were sent for to execute certain papers concerning it. They met the Defendant, Bradley, at Lambert’s office, on the 13th day of April, 1861, and in conversation about the scrip refused to sign the papers. Bradley then took the scrip from Lambert, [334] and delivered it to Caldwell for Hurlburt, subject to bis order. This occurred about four o’clock p. m., on the 13th of April. About six o’clock p. M. of the same day, Gamelle went to the residence of the Defendant, and demanded the scrip of him. Bradley answered, “ What scrip ? ” Gamelle said, “ The scrip in Lambert’s office.” Bradley said “ He had not got it, that the scrip did not belong to him.” This suit was immediately commenced by the service of the summons and complaint. Replevin being for the recovery of the thing claimed, and not its value, can only be maintained against a Defendant, who at the time of the commencement of the action has the possession of the subject matter, and is capable of complying with the prayer of the complaint. If the property has passed beyond the control of the Defendant, then trespass trover, or some action aimed at a recovery of its value is the proper remedy. In this case, the proof shows that the Defendant had delivered the scrip to one Caldwell for Mr. Hurl-burt, subject to the order of the latter. As long as the scrip remained, in the hands of Caldwell under such deposit, the Defendant had the right to reclaim it in the same manner that Hurlburt could have reclaimed it from him at any time before he had disposed of it. It was therefore clearly under the control of the Defendant, although in the hands of Caldwell, and in such case replevin will lie upon a refusal to deliver it to the real owner, or person entitled to the immediate possession of it. The Defendant had sworn on the trial that he had delivered the scrip to Caldwell for Hurlburt, subject to his order, and was then asked what he said to Caldwell at the time he handed the scrip to him. This evidence was objected to and excluded. We can see no error in this rtiling. Having himself stated the character and terms of the deposit, it could avail nothing to prove the exact words in which he made it. It was not proposed to show that the deposit was in any manner different from what the Defendant had sworn that it was; it Btood in the best light for him. The testimony therefore was not important. The referee was fully justified in finding as the evidence stood, that the scrip was under the control of [335] the Defendant, but a very short time had elapsed since its delivery to Caldwell, and the presumption was strongly that it still remained in his hands when the demand was made. If it had passed beyond the control of the Defendant, by delivery to Hurlburt, or otherwise, it was for the Defendant to show it. The Plaintiff had made a case against him by the facts proved when he. rested, and it devolved upon the Defendant to relieve himself if he could. On the question of value we think the referee held properly. It is true the scrip was not assignable, and that it was not available in the hands of parties other than the Plaintiffs, and that they could have obtained duplicates had they been deprived of it. Yet is it in the power of a wrong doer to say that the Plaintiffs must resort to such means for redress? We think not. They owned the scrip ; it was worth to them a certain sum ; the Defendant deprived them of it, and it is not for him to say that because it is of no value to him, it is no loss to them. Judgment affirmed. Atwater, J. Motion for re-argument. The motion or petition sets forth certain facts showing that the Plaintiff in Error has taken steps at the earliest time after notice of the decision of this Court, to bring this cause before the Court for a re-hearing. He also sets up that this Court has probably committed an error in the decision of the cause, stating wherein the error consists, and that the point involving the error was not fully presented to the Court upon the former hearing. In this the counsel is mistaken. The case was fully argued to this Coui't, in all its aspects, including the alleged ground of error. And the Court in its consideration of the case, examined the views then and now presented in this behalf, and came to the conclusion stated in the opinion on file, in view of all the facts and principles of law bearing on the case. The petitioner therefore does not bring himself within the rule laid down in Derby & Day vs. Gallup, 5 Minn., 119, and the motion or petition for a re-argument must be denied. The petitioner further asks, that if are-argument be refused, [336] tbe Court will grant a special stay of all proceedings on the part of the Defendants in Error, upon the judgment in this cause, during the pendency of said cause on writ of error to the Supreme Court of 'the United States, provided such writ of error shall be sued out within ten days from the determination of this application, or such other time as the Court may specify, the petitioner giving such security as the Court shall direct. No facts are stated as a ground for the interposition of the Court in favor of the Plaintiff in Error in this behalf. It is not stated that the Defendant in Error is insolvent, nor that, in case of a reversal of the judgment of this Court, the Plaintiff in Error cannot recover any damages, which may be adjudged in his favor by the court of review, nor even that the Defendant in Error was proceeding to enforce, or threatened to enforce against the Plaintiff in Error the judgment for the value of the scrip. In Derby & Day vs. Gallup, above cited, this Court granted a stay of proceedings pending a writ of error to the Supreme Court of the United States, it appearing that the Respondent in that case was proceeding to enforce his judgment in the State of Missouri against the property of the Plaintiffs in Error, and it also appearing to this Court, that the Respondent was irresponsible, or at least, that there was a strong probability that the Appellants would not be able to collect of the Respondent any judgment which they might obtain against him in the Supreme Court of the United States. This Court would not be justified in interfering with the proceedings of a party upon a judgment in his favor, obtained by due course of law, except some cogent reasons of this kind are presented to the Court, as a ground for the relief demanded. The motion for a re-argument and stay of proceedings is denied.