Dart v. Horn

Caton, C. J. We are inclined to the opinion, that by a liberal construction of our statute, where part of the property claimed in the writ of replevin cannot be found, and there is personal service, the plaintiff may add a count in trover. The remedial policy of the statute would seem to require this; and we do not apprehend that any serious difficulty will be found in practice, by adopting the rules of damages appropriate to each count. But we think the second instruction, given for the plaintiff, improperly assumed facts to be true, which should have been left to the jury, and which it was by no means certain were established by the proof. The instruction is this: “ If the jury believe, from the evidence, that the plaintiff was the owner of the hay in question, at the time it was taken, as proved by the witnesses, the jury will find a verdict for the plaintiff on the count in trover, for the hay so taken, at the value of the hay as proved by the evidence.” This assumes that the hay was taken by the defendants, and all of them. It should have been left to the jury to say, whether all of the defendants were engaged in taking the hay, which, from the evidence preserved in this bill of exceptions, was a doubtful question; and especially was it doubtful, whether all of the defendants were jointly engaged in taking all the hay, for which the verdict was rendered. The verdict against all, could be for no more than all were jointly engaged in removing. The judgment must be reversed, and the cause remanded. Judgment reversed.