Seymour v. Colburn , 43 Wis. 67 ( 1877 )

Ryan, C. J.

We do not understand it to be denied, indeed it could no't well be, that the appellant’s mortgage must prevail over the attachment issued to the respondent. And the only question in the case, on the merits, is, whether the respondent was protected by the pledge of the goods by Capron to Tierney, which he pleads.

Whether the transaction between Capron and Tierney would amount to a pledge, if accompanied by possession, and whether the attachment would have been a waiver of the pledge (Townsend v. Newell, 14 Pick., 332; Whittaker v. Sumner, 20 id., 399), are questions which we need not consider. For it is quite manifest that Capron remained in possession of the goods in the building which he hired from Tierney, until they were taken by the respondent on the attachment; and that Tierney had no possession of them, either actual of constructive. Tierney issued his attachment because he had not possession. The rule is elementary, that possession by the pledgee is essential to a pledge; actual possession when practicable, constructive possession when actual possession is impracticable. To constitute an executed pledge, there must be some transfer of possession, actual or constructive. Story on Bail., §§ 286-299. It would be mere waste of time to discuss the point.

The merits of the case, therefore, afford no ground for a new trial.

But it appears that the respondent had levied his attachment on other goods besides those in controversy in this case; and that, after the jury had been charged and had retired to consider their verdict, they returned for instruction what disposition to make of those other goods. The learned judge of the court below, not unnaturally or inaccurately, told them that those goods were not in the case, and that the jury had nothing to do with them. It appears that this piece of information was orally given to the jury; that afterwards the learned judge was persuaded to regard it as a part of his charge; that he thus became sensible of a grave offense against the statute, because his reply was not reduced to writing; and thereupon granted a new trial, by way of judicial atonement for the wrong which his unlicensed speech had done to the respondent.

It is difficult to deal gravely with such a position. The learned judge’s answer to the question was no part of his charge; was not the subject of exception, and had no more to do with the case than the goods about which the jury inquired. The jury asked an irrelevant question, and the learned judge simply told them that it was irrelevant. Hasbrouck v. Milwaukee, 21 Wis., 217; Millard v. Lyons, 25 id., 516.

There was no color of legal ground for a new trial; and the order was an abuse of discretion.

By the Court.— The order granting a new trial is reversed, and the cause remanded with directions to the court below to proceed to judgment on the verdict.