Murphy v. Sherman

Gileillan, C. J. This action was in the nature of trespass ■de bonis for unlawfully taking a horse of plaintiff, which the ■defendants justify under a writ of attachment in favor of Woods against plaintiff, executed by defendant Sherman, a ■constable. The court below instructed the jury that no demand by plaintiff was necessary, and that they should find .a verdict for plaintiff for the value of the horse, with interest from the time of taking. In these instructions, the court was right. There was no controversy as to the taking, and the evidence to show the horse exempt was clear and uncontradicted, and it was the only horse plaintiff owned. The ■original taking was, therefore, wrongful, and no demand was necessary. But defendants claim that the instruction to find a verdict for plaintiff, for the value of the horse, was errone [198] ous, because, as is claimed, Woods was not connected with, the taking; that there was evidence of. a waiver of his exemption, by plaintiff, which ought to have been left to the jury,, and that the complaint claims damages only for the detention. That Woods was plaintiff in the attachment would, of' course, be of itself insufficient to charge him with an unlawful taking under it. But he testifies, himself, that when, on his-execution issued upon the judgment rendered in the attachment suit, the defendant Sherman sold the horse, he became-the purchaser, (he then knowing, as the special verdict finds, that it was exempt,) and that he afterwards sold the horse-himself. The unlawful act might be his, either by his previously directing, or subsequently ratifying it, and his acts, testified to by himself, amount to a ratification. As to the waiver of the exemption, the complaint alleges that the taking was under the attachment, and that the property was exempt. The answer does not, as it ought to-have done, if defendants relied upon it for a defence, allege any waiver, so that it was not an issue in the pleadings; and there is nothing to show that, on the trial, the parties consented to try it as though it were in issue. The mere admission of the evidence tending to prove a waiver does not show such consent, for that evidence was admissible for another purpose. The defendants cannot complain that the court, baits charge, did not give them the benefit of this evidence that they might have been entitled to under proper issues. The rule of damages laid down in the charge is correct. The complaint claims damages as well for the taking as the-detention, and the action was tried on the theory that the value was the proper measure of damages. Both parties,' without any objection, introduced evidence of the value, and it was the only evidence as to the damages. Order affirmed.