Whisler v. Roberts

Breese, J. The first question presented by the record, is the sufficiency of the affidavit on which the writ of replevin issued. It is urged by the plaintiff in error that it is insufficient, because it does not contain the allegation that' the property was unlawfully taken, or unlawfully detained. The statute, chap. 89, R. L. 1845, title “ Replevin,” requires no such allegation. The third section of that act provides “ that the person or persons bringing such action, or some one in his, her or their behalf, shall, before any writ shall issue, make oath or affirmation before the clerk of the Circuit Court, or any justice of the peace of the proper county, that the plaintiff in such action is the owner of the property described in the writ and about to be replevied, or that he is lawfully entitled to the possession thereof, etc.” The affidavit in question conforms to this provision in every particular, and there can be no necessity of any other averments in it than those prescribed by the statute. We therefore adjudge it sufficient. It is next urged that the action is local, and therefore there should be an averment of the particular place where the property was taken. At common law, replevin is a local action, and the place, vill or parish must be averred. Our statute has enlarged this remedy, and made several essential changes in the proceeding, so that it is now a statutory remedy and transitory in its nature, and no special venue required to be stated. The court therefore decided correctly in overruling the motion to quash the writ and affidavit on this ground. The next objection urged, is the refusal of the court to set aside the verdict, as not sustained by the evidence, and award a new trial. The main question submitted to the jury was, whether the property was delivered to Roberts under the mortgage to him by Strickland, before the execution in favor of Wyman & Hippie and against Strickland, in the hands of Whisler, as constable, became a lien on Strickland’s property. The proof shows that this execution was placed in the constable’s hands on the 31st day of August, 1857. On that day it became a lien on the property in Strickland’s hands, as well this, mortgaged to Roberts, as any other property, the plaintiffs in execution having no notice of the mortgage. To show this was not in Strickland’s hands or possession on that day, Stephen Roberts was sworn as a- witness, who stated that the property was delivered up by Strickland to William. Roberts on the 26th or 27th of August, some four or five days before the delivery of the execution to the officer. On the other hand, John Strickland testified that he put the property in Roberts’ possession, temporarily, on the day certain other executions against him in favor of Hulets and Atwater were issued, and which was on the 17th day of September, 1857. Now, here the witnesses were directly opposed; there was a conflict in the testimony for the jury to reconcile, it being their peculiar province so to do, or, if they could not reconcile it, then to determine to which witness they would give the most credit. In determining this, the jury did, of course, regard all the circumstances surrounding the witnesses — their manner of testifying — their bias — their intelligence. Having determined it, as they have, we cannot say they have not determined it right, for there are no facts in the case to guide us, the one way or the other. The jury have weighed the evidence, and we are satisfied with their finding. Another objection is raised to the instructions given on behalf of the plaintiff Roberts. On a careful examination of them in connection with the evidence in the cause, we are unable to perceive any such error in them as would justify our interference. Nor do we see any error in refusing to give the eighth instruction asked by the defendant Whisler. That instruction assumes that Roberts, by the mortgage, had no right to hold the property unless with Strickland’s consent. It will be seen there was no provision in the mortgage that Strickland should retain the possession of the property. It transferred to Roberts the right of possession, as well as of property, at the time of its execution, subject only to be defeated by the payment of the money. Roberts, then, had the right to take possession of it, peaceably, without Strickland’s consent, and having this right by force of the mortgage, although he obtained possession for a temporary purpose, he could retain that possession unless liens had intervened whilst in the possession of Strickland. We therefore think the instruction was properly refused, and the judgment must be affirmed. Judgment affirmed.