majority">Pemberton, C. J.

At the trial of this case, the court instructed the jury to disregard all evidence offered to show justification by the defendant Zimmerman, as sheriff, under the execution issued in the case of Darcy against Graves & Harris, -because there was no evidence of any judgment hav-' *191ing been rendered in that case upon which an execution could have legally issued. The court, notwithstanding this instruction, permitted the jury to take to their room, and consider, in making up their verdict, the summons, account, and execution in the case, over plaintiffs’ objection and exception. This was error.

The court refused to give the following instruction at the request of the plaintiffs: “The evidence in this case shows that the plaintiffs, Sweeney & Cowell, were in possession of the property in question at the time the same was taken from them under the alleged execution. This is prima facie evidence that the plaintiffs were the owners thereof, and entitled to the possession of the same; and unless the defendants have proven by a preponderance of the evidence that Graves & Harris or Charlie Harris were the owners of or entitled to the possession thereof at the time of such taking, you should find for the plaintiffs.'’

The court gave an instruction to the same effect, except that the instruction given left it to the jury to say and find whether plaintiffs were in possession of the sheep at the time the sheriff seized them. There is not a particle of controversy in the evidence about this question. The evidence all shows that the sheep were at that time in the possession of the plaintiffs. The officer who made the levy so testifies. Nobody disputes it. There was therefore no question of fact \ipon this issue to be submitted to and determined by the jury. The instruction requested by plaintiffs should have been given to the jury.

But the main question in the case is aá to whether the sheep in question were lawfully in possession of the plaintiffs at the time they were seized by the sheriff. The facts are substantially set out in the statement of the case, and it is useless to repeat them here. It is shown clearly by the testimony of plaintiff Cowell and Mr. Graves, of the firm of Graves & Harris, that the sheep were turned over to the plaintiffs under and in accordance with the terms of the leases referred to in the statement, and that the plaintiffs, under the terms of the *192delivery to them of the sheep, were to keep them to make-good losses which Graves & Harris were bound to make good to them under the leases of the sheep. There is some pretense that the sheep were the individual property of Harris. This could not' be so. Under the lease to Graves & Harris, the title to the sheep was to remain in plaintiffs until final settlement of the sheep contracts in 1896. Harris could get no title to the sheep until then. Harris does not contradict the evidence of Cowell and Graves as to the terms of plaintiffs’ possession of the' sheep. We are unable to discover any grounds upon which the verdict and judgment can be sustained. Neither Graves & Harris, nor Harris individually, could have taken the sheep from the possession of the plaintiffs under any view disclosed by the facts1 of the case. If they could not, then their creditors could claim no greater-right to do so.

The judgment and order appealed from are reversed, and. the cause remanded for new trial.

Reversed and Remanded.

Hunt and Pigott, JJ., concur.

Citation profile

How this case has been treated — in progress