John M. Pons, Plaintiff in Error, vs. Isaiah D. Hart, Defendant in Error, 5 Fla. 457

BALTZELL, C. J., delivered tbe opinion of the Court. This was an action of replevin, instituted by Isaiah D. Hart, to recover from John M. Pons three negro slaves, which he alleges he tookfrom him and unjustly detains. On the trial defendant, “ to maintain the issue on his part, offered to give in evidence the writ of replevin in the case of William Proctor vs. Isaiah D. Hart, and the return of the Sheriff thereon, and to prove by the evidence of George H.

Smith that the slaves in controversy are the identical slaves taken out of the possession of Hart by the said writ of replevin, which were delivered to Proctor by virtue of the writ; but the counsel of plaintiff objected, and the Court sustained the objection.” This is assigned for error in this Court by Pons, and has been pressed with some zeal on the part of counsel.

B is insisted on the part of Hart that if there was error in this ruling, it was cured by the action of the Court in the further progress.of the trial, “ as Smith was introduced as a witness, and upon the writ of replevin in the caseyrfHart and Proctor being placed in his hands, he testified that he executed the same, as Sheriff of Duval County, by taking the negroes mentioned therein and delivering them to Proctor, and that they were the same negroes mentioned in the writ of replevin in the case of Hart and Pons.” There is no complaint as to the npn-admission of Smith’s testimony ; the objection is that the writ of replevin was not read in evidence.

It,is true, this does not appear in express terms to have been read, yet defendant seems to have had the benefit of it before the jury. It was “ placed in the hands of the witness, the Sheriff, and he testified that he executed it,” &c. Now it is scarcely credible that in this state of the case defendant was prevented from availing himself of the fact that there was such a writ.

Moreover, the admission of Smith’s evidence, with the use of the writ, was such an indication of the disposition of the Court to admit the writ also, that if there was a failure to get it before the jury more fully, it can scarcely be regarded as the fault of the Court, or an error for which the judgment should be reversed. In the case of Morrison vs. Call, recently tried at Tallahassee, the Court decided that the admission of testimony rejected at a former stage of the trial, cured the error, and we see no reason to doubt the -correctness of the ruling.

We are of opinion, then, that there is no error in this assignment. It is proper to remark that appellant’s counsel contend, that Smith’s evidence was not introduced-at their instance, but in this we suppose they are mistaken. It is certainly not in -favor of Hart. It forms the ground of defence of Pons ; indeed, the only position assumed in his behalf. It is also said that this' evidence was applicable to the case of Hart and Proctor, and not designed for that of Pons vs. Hart.

If so, the bill does not present that aspect, and the question naturally arises why evidence used in the one case is incorporated into and made part of the other? Whether the writ and evidence of Smith should have the effect contended for, of concluding the casé, is not for our consideration. We are confined to the questions made by the bill of exceptions. See Gray vs. Belden, 3 Florida Reports, 114; Exparte Crane, 5 Peters, 199; 4 How., 298, 401, 292, 418, 541; 1 Leigh, 86; 1 Wend., 418; 14 John., 304; 1 Cowen, 622, and the opinion pronounced in the case of Proctor vs. Hart at the present term.

A party having a defence has the right, through his pleadings, and through instructions proposed during the trial,'to obtain a decision as to its effect. If conclusive, (as alleged in the present instance,) he may insist on the Court’s so declaring, and if they refuse, or make an erroneous decision, he may appeal to the Supreme Court to correct the error. He may, however, if he prefers, submit the matter to the arbitrament of the jtiry, taking the chances of their deciding in his favor.

Nor is he confined even to this ; for if the jury find against him, he may apply for a new trial, and present the decision on this also to the appellate Court for review. Such is the mode and process by which the rights of the citizen are asserted and maintained in the Courts. If none of them are adopted, he may be regarded as waiving his objections, or as being content with the decision. In the present ease we perceive no plea, no instruction proposed, nor any motion made for a new trial.

In the absence of all these, we are asked to regard a piece of testimony introduced by one of the parties as conclusive, without any knowledge or information as to that produced by the other, and to reverse the ease on that account. If the whole testimony were before us in the bill of exceptions, we have no such power. To an application of like kind, the Supreme Court of the United States, in the case of Hapburn vs.

Dubois, made this response; “ In urging ■Upon this Court a review of the parol evidence in the record, We think the counsel of the plaintiff in error have asked us to transcend the limits prescribed to our action on questions of fact, by an uniform course of decision fronfithe first organization of thi's Court, which has been repieatedly defined in our opinions during this term, unanimous on the law, though sometimes differing in its application to particular cases. “ If pur past course of adjudication has not sufficed to satisfy the bar as to what we have considered our most solemn duty, and if it is yet an open question as to what is the line which the law has drawn between those questions of fact cognizable only by the jury below, and questions arising on the joint action of the Court and jury in that Court, whose record we judicially inspect, on error, it will be useless to close it by any opinion tobe delivered in this case.” ' They then assert that they are expressly prohibited by the provision of the Constitution of the United States securing the right of trial by j ury, from considering the subject in-the manner proposed. 12 Peters, 375-’6.

This Court has also declared its deliberate purpose to maintain the like provision in our State Constitution. Flint River Steam Boat Co. vs. Roberts & Co., 2 Fla., 102. In addition to this, it is very clear that such a review by amap'pellate Court invokes the exercise of original jurisdiction, whilst that of this Court íb carefully declared by the Constitution of the State to be “ appellate only” original jurisdiction being conferred upon the Circuit Courts. See Constitution of the State.

We have not thought proper to decide the point, argued with great force and ability on the part of defendant in error, that under no circumstances was this writ of replevin admissible in evidence, being satisfied with the conclusive view already taken of the subject. This case has been argued as if a cross replevin had been issued, and complaint is made of the hardship and irregularity of the proceeding, but the record does not present it in that light. The appellant shows no connection with Proctor, nor interest, nor right in him, nor any body else.

If in fact a cross replevin had been issued, the remedy and power of the Court might have been complete to prevent injury. The Supreme Court of New York superseded a writ of replevin issued by defendant to obtain a re-deliverance of the property taken from him by writ of replevin. Morris vs. DeWitt, 5 Mend., 70. It is not necessary to decide that a like course would be appropriate under our statute We may be permitted to say, however, that the statute in our opinion is very imperfect, and to express the fear that it may be made the instrument of great injury and injustice.

To allow the possession of personal property to be taken from a defendant under a mere affidavit, and to remain with plaintiff until after trial, under our tardy system, is to give a decided advantage to one party. The New York statute provides for an immediate trial when a claim of right is putin by the defendant, and prevents also the change of possession until after the decision. The writ of replevin is not copied into the record, and counsel for appellant taking it for granted that none ever existed, now insists that the judgment, on this account, is invalid. In this'we think he is mistaken.

That there was a writ, is very manifest, from the whole record. The affidavit and bond on which it was issued are before us, and it is very clear if there was no writ plaintiff effected no object of his suit, and there was actually no contest between the parties. But the Sheriff, Smith, whose testimony we have already given, speaks of the writ and of the negroes mentioned in it, as being the same as in the case of Proctor and Hart. If there was no writ, and it was important, defendant should have filed his plea to that effect, or moved to set aside the proceeding.

Instead of this, he has plead in chief, thus avoiding all objection to the preliminary proceeding. Nor do we see how the writ is material to the questions presented in this Court, no motion having been made connected with or dependent upon it. But supposing it to be material to some question to be decided in this Court, and it was apparent that it had been lost from the files, would the Court on this account reverse the judgment? Obviously not. It would be opposed-to every sense of propriety to make the rights of parties dependent upon mere accident or chance.

Papers when filed with the Clerk are in the custody of the law, and if lost or mislaid, the Court will exert itself to have them replaced, or to have a substitute for them, so as to prevent injury. If this paper were at all material to any question before us, we should not hesitate to continue the case, to enable the parties to supply the deficiency. "We are therefore of opinion that there is no error in the judgment of the Court below, and that the same be affirmed, with costs.