Hopkins v. Smith

delivered the opinion of the court.

This was an action of trover, brought by the defendants in error, against the plaintiff, for some cattle sold by a constable, under execution, in favor of the plaintiff against one Garret, for whose wife the defendants, as her trustees, claimed the cattle.

The jury found a verdict for $15 in damages, and the court refused to award a new trial.

Whether there was sufficient proof to show that the plaintiff in the action had a legal right to the cattle, we shall not now consider. For if there was, Garret, the husband of the cestui que trust, was not a competent witness for the trustees, and therefore the circuit court, in that view of the case, erred in deciding that he was competent, and if there was not sufficient proof of the title of the trustees to the cattle sued for by them, the verdict could not be sustained; and, in either event, the judgment would be erroneous; and whatever may be the effect of the proof, as to the title of the trustees, we are of opinion that there was not sufficient proof of a conversion by the plaintiff in error. As creditor in the *264execution, he was not liable for conversion by the constabIe, unless he had, in some wav, been instruin the sale of the cattle. The only fact, tending in any degree to show any such agency, is ^iat> wben he delivered the execution to the constable, the plaintiff said, “levy it on Garret’s cattle.” There is no proof that he directed the levy to lie mac^e 011 Ibe ca^^e which were levied on by the constable, or that he advised or sanctioned the levy as made, or intended to direct a levy on any other cattle than such as belonged to Garret: there is not even any proof that Garret was in the possession of the cattle levied on, at the time the instruction was given by the plaintiff, or that he had no other cattle.

Wherefore, the judgment is reversed, and the cause remanded for a new trial, which the circuit court erred in refusing to award, on the motion of the plaintiff in error.