Jasper Republican, Volume 1, Number 46, Rensselaer, Jasper County, 30 July 1875 — THE LATEST LAW. [ARTICLE]

THE LATEST LAW.

Many Leading Cases JOHN DOE VS. RICHARD ROE. (WRITTEN BY MR. SCOOP.) This is an action to replevy a written paper which was taken in nay presence by the defendant from the trial table, while the cause of James Gammon vs. John Doe was being triad before me. The plaintiff as a party in the suit produced the writingas evidence, and the defendant took it from the table. The plaintiff remonstrated and I ordered the defendant to give it up. The defendant simply said, “I wont.” I then told the plain tiff to file an affidavit for contempt, and I would punish such impudence with a strong hand. The plaintiff insisted that the court could proceed at sight, but I adjourned court to arrest the disturbance and give time to write an affidavit. I then decided that I had no power to keep order without an affidavit, and overruled the late leading cases of Murphy vs. Nelson, 46 1nd.—537, and Whittem vs. State, 36 1nd.—196. I then adjourned until the 17th of July, 1875. The plaintiff filed a good affidadavit and I would have punished the defendant, but Mr Quirk, attorney for the defendant, persuaded me that I could not do so upon an affidavit. I had, therefore, to decline doing anything. I however declared in open court that it was very wrong for any person to take from the table and keep a paper which had been read in evidence before me. I was sure the defendant should give up the par per, and at my suggestion this action was brought, and knowing all the facts I promptly issued a writ of replevin. The constable returned the writ endorsed, “The defendant says I have the property and I wont give it up,” and the cause came on for trial, and the evidence showed beyond question,

Ffrst, That the writing was the property of plaintiff, and had been his undisputed property since May 29,1875. Second, That it was entrusted to me as a court, and to plaintiff’s attorney as such, to be heard in evidence, July 16, 1875. Third, that the plaintiff asked for the paper— strongly insisted on having; it to be used for the purposes of the trial—when the defendant grabbed it from the table, and has sinse kept, although many times requested to give it back before the bringing of this suit.

Fourth, The paper was a duplicate of a subcontract of the plaintiff with-the firm of Gammon A Snapps, of which Gammon & Snapps held the counterpart. Fifth, There had been a change made in the contract with the consent of Gammon, the business member of the firm of Gammon & Snapps. Sixth, Tbe value of tie property to plaintiff was shown to be fifty dollars, and the damages fir its detention, fifty doUars more. I looked the ground al! over, and in order to be consistent, concluded that as I had not punished the defendant for contempt that he must have a right to the paper. It is true, in the leading cases of Powell vs. Kline, 44 1nd.—296, Ingersoll vs. Emmerson, Ist Ind, —76, and Kitehell vs. Vanador, Ist 81ac.—356, good judges decided that a bailee (me) for a special purpose (to be used in a trial) cannot in contravention of said purpose give the property of the bailor (the plaintiff) to a third party, (the defendant) so that he, the third party, ean hold the property against the bailor and real owner. But in order to preserve my consistency, I do hereby strongly criticise and overrule all of said decision and hereby declare that the defendent was only guilty of a mere trespass. It is true, the court in 44, 1nd.—296, use this language: “The action of replevin may now be maintained in all cases where trespass would lie for taking persona] property.” But, it is also true, that I have found for the defendant, and hence, the above extract is not good law, and besides, that case has been expressly overruled by mb. See supra.

In the case of Davis vs. Warfield, 38 1nd.—463, the court hold that the plaintiff need only prove an absolute or qualified title, and the right of possession. In this case the plaintiff was the absolute owner beyond question, and his possession and right of possession undisputed. The case of Davis vs. Warfield is bad law. The plaintiff placed his property upon the trial table in my court, and the defendant took it contrary to my wishes, and those of the owner, and upon demand refused to give it up, and I decide he shall keep it as his own. The cases in 2 81ac.—172, 4 81ac.—304, aud 47 Ind.—2Bl, are declared to be annuled, and I decide it to be rule of my court: That if a party litigant shows any property in my court for the purpose of evidence, or for any other purpose, and the opposite party can get possession of it, the whole power of my court must and will be used to prevent the owner from ever getting it again. That if either party to a suit before me shall ever place any article of his property upon the trial table, he shall not * take it again contrary to to the wishes of his adversary. I ought to have punished the defendant on the spot, but did not for want of an affidavit. When the affidavit was filed I could not proceed, because it was too late, and I do, therefore, find that said paper is now the property of the defendant. That by virtue thereof he is entitled to all the privileges of a subcontractor of the plaintiff, and as such is entitled to said paper as matter of right The defendant is further ordered to proceed at once to complete the work as designated in said contract, and the plaintiff is ordered to pay ths cost. All of which is ordered and decreed by mb.

The Lowell Star says: “Several thousand ties fo* the Chicago and South Atlantic Railroad are now at Dyer, part of them being unloaded last Thursday. Wdl, that sounds a little like business.