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phine Hall, as well as some of John Hall. They also levied upon 19 head at the place of one Prendergast, most of which were branded with the I. D. and Y. G. brands, which had been driven there by John Hall en route to Browning for shipment to Chicago, provided (according to John Hall's testimony) a permit could be obtained from the Indian agent at Browning consenting to the shipment of Mrs. Hall's cattle. The evidence, however, is that Mrs. Hall did not authorize her husband to sell her cattle, and did not know that he had driven any of them away, for the purpose of shipment or otherwise.
The obvious duty of an officer in executing a writ of attachment is, as held by this court in St. Paul, etc., Railway Company v. Drake, 44 U. S. App. 271, 276, 72 Fed. 945, 19 C. C. A. 252, to levy upon property of the defendant to the writ, and not upon the property of somebody else. He has, as was said by the Supreme Court in Buck v. Colbath, 3 Wall. 334, 343, 18 L. Ed. 257
"A very large and important field for the exercise of his judgment and discretion, first, in ascertaining that the property on which he proposes to levy is the property of the person against whom the writ is directed; secondly, that it is property which by law is subject to be taken under the writ; and. thirdly, as to the quantity of such property necessary to be seized in the case in hand. In all these particulars he is bound to exercise his own judgment, and is legally responsible to any person for the consequences of any error or mistake in its exercise to his prejudice. He is so liable to plaintiff, to defendant, or to any third person whom his erroneous action in the premises may injure."
Even if it be conceded that the different brands upon these cattle were not of themselves enough to put the officer upon inquiry as to their ownership, it appears from the testimony of the deputy sheriff who made the levy that he had sufficient knowledge of a controversy to put him upon inquiry as to the ownership; his testimony upon redirect examination being:
"I was directed specifically and positively to take all the Y. G. cattle. Those were Mrs. Hall's cattle, or considered as hers in the neighborhood, from rumor."
The doctrine relating to "confusion of goods," relied on by counsel for the plaintiffs in error, has no application to cattle and horses, and things of a similar nature, that may be readily identified. The Idaho, 93 U. S. 575, 23 L. Ed. 978; Claflin v. Beaver (C. C.) 55 Fed. 576; Carlton v. Davis, 8 Allen (Mass.) 94; Moore v. Bowman, 47 N. H. 494, 502; Capron v. Porter, 43 Conn. 383; Brown v. Bacon, 63 Tex. 595; Drake on Attachment (7th Ed.) § 199.
In the course of the trial the defendant McKnight testified, in effect, that prior to the commencement of his action against John Hall he went to the ranch of the latter for the purpose of collecting his note, and that Hall there said to him, "I have got the cattle all rounded up and intend to ship them to Chicago from Baltic in a few days," but that he (McKnight) replied that it would be more satisfactory to him for Hall to settle the note before he shipped the cattle; that Hall said:
"All right; I will come in and square this. I will pay you this as I can get the money from Kingsbury and Davies."
An objection and motion to strike this testimony out having been made, the court said:
"Do you expect to prove that he had these cattle and owned them? If so, you must prove it by something more than John Hall's declaration."
To which counsel for the defendants responded:
"We do, and we expect to offer to prove by this witness that John Hall was the owner of the cattle whose conversion is now being sued for; that he was in possession of them, and about to ship them to Chicago, and while exercising acts of ownership and control over these very cattle he offered to mortgage them to McKnight to secure his debt to him, or, if McKnight would wait until he shipped them to Chicago, he would turn over the proceeds of the sale of them to McKnight, and stated to McKnight that the cattle were his. This offer of proof is made for the purpose of showing that the cattle belonged to John Hall, and also for the purpose of impeaching Hall as a witness. (Motion to strike [out] granted, and offer of proof denied by the court. The defendants excepted.)"
It is insisted on the part of the plaintiffs in error that such declarations of John Hall in respect to the ownership of the cattle were admissible. We do not think so. Conceding, but without holding, that the declarations of one in possession of personal property, in respect to the character of such possession, are admissible in evidence against strangers on the issue of ownership, yet an insuperable objection to the proposed declarations in the present case is that they were not made at a time when they could be properly regarded as a part of the res gesta. Mutual Life Insurance Company v. Logan, 87 Fed. 637, 645, 31 C. C. A. 172; Mack v. Porter, 72 Fed. 236, 242, 18 C. C. A. 527; Crawford v. Crawford (Kan. Sup.) 55 Pac. 842; Low v. Schaffer (Or.) 33 Pac. 679; Alexander v. Jennings, 78 Tenn. 419; Coxe v. Milbrath, 110 Wis. 499, 86 N. W. 174; 1 Greenleaf on Evidence, § 110; Wharton on Evidence, § 259; 24 A. & E. Encyc. of Law (2d Ed.) p. 691.
It is further contended on the part of the plaintiffs in error that the court below erred in sustaining objections to questions to Josephine Hall by which it was sought to show that she had told the defendant McKnight in 1897 that the cattle issued to her by the government had been taken by people to whom she was indebted, and in sustaining like objections to a question put to the witness McKnight. The ruling of the court below was right. These cattle, like the personal property spoken of by the Supreme Court in United States v. Rickert, 188 U. S. 432, 443, 23 Sup. Ct. 478, 483, 47 L. Ed. 532, were purchased with the money of the government and were furnished to the Indians "to induce them to adopt the habits of civilized life. It was, in fact, the property of the United States, and was put into the hands of the Indians to be used in execution of the purpose of the government in reference to them." It is not pretended that the government ever consented to a disposition of the cattle by Josephine Hall, and it is plain that no declaration of hers could affect its right and duty to protect her.
It is also urged on behalf of the plaintiffs in error that the court below improperly permitted John Hall to give in evidence a conversation he had with the deputies of the defendant sheriff. Hall,
having testified that he had a conversation with them in respect to some of the cattle that they had levied upon and had in charge, was asked:
"What was said?"
To which he was permitted to answer, over the objection and exception of the defendants, as follows:
"A. I rode up to them. They had that little bunch of cattle and was driving them off. The undersheriff of Mr. Taylor said: 'We are coming to get the rest of them.' I said: 'What are you going to do with them?' 'Why,' he says, 'we will sell them, I reckon, when we get around to it.' There must have been twenty head of I. D. cattle in that bunch."
The record proceeds:
"Q. Did you at that time say anything about the I. D. cattle that were in the bunch? (Objected to as leading, and as incompetent, irrelevant, and immaterial. Objection overruled. Defendants excepted.) A. I said: 'What are you going to do with the I. D. cattle?' He said: 'I don't know what they are going to do with them. Our orders are to take everything with the Y. G. brand on them, even if it had the I. D. on it.'"
Even if it be conceded that this testimony was improperly admitted, it was immaterial, for it in no way tended to prove the ownership of the cattle. It may be added, however, that declarations of an officer in making a levy, in connection with the performance of his acts, are admissible. 1 Wharton on Evidence, §§ 262, 264; 1 Greenleaf on Evidence, § 108; Steamboat Company v. Brockett, 121 U. S. 637, 7 Sup. Ct. 1039, 30 L. Ed. 1049.
In the cross-examination of John Hall, and of the deputy sheriff, Gaines, both of whom were witnesses for the plaintiff, the counsel for the defendants sought to show that the cattle of Josephine Hall and John Hall were intermingled, and that neither Hall nor his wife ever pointed out to the officer the cattle belonging to Mrs. Hall; the defendants contending that, under the circumstances, the officer could not become liable without being notified by or on the part of Mrs. Hall of her ownership. The record shows, on the re direct examination of John Hall, the following proceedings:
"Q. Now, you say, when you met the deputy sheriffs there on the reservation with the cattle, that they knew that they were Y. G. and I. D. cattle, and that they belonged to your wife. How do you know that? (Objected to as incompetent, irrelevant, and immaterial. Objection overruled. Exception noted.) A. One of the deputies lives right there close to me. You might say he seen the cattle right along. He knew them as well as I did; knew what the brand was."
And on the redirect and recross-examination of the witness Gaines the following proceedings:
"Redirect examination: I also knew that the Y. G.'s was hers; but, irrespective of that, I was ordered to bring all of the Y. G. cattle with the I. D. brand on.
"Recross-examination: As to whether I knew that brand was hers, it was simply hearsay, and the general talk round about there. It is general repute and hearsay. I didn't see it recorded at all.
"(Counsel for defendants moved to strike out all of the testimony of this witness as to what he heard about the Y. G. brand being Josephine Hall's, because the same is hearsay, and incompetent, and not the proper way to prove ownership of a brand. Motion denied. Defendants excepted.)"
We think the testimony was admissible, not, as a matter of course, for the purpose of proving title, but as going to show that the officer was put upon inquiry as to the true ownership of the cattle in question.
Section 1082 of the Code of Civil Procedure of Montana provides that:
"If the jury are permitted to separate either during the trial or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with or suffer themselves to be addressed by any other person on any subject of the trial, and that it is their duty not to form or express an opinion thereon until the case is finally submitted to them."
And it is contended on the part of the plaintiffs in error that by virtue of this state statute, and of the provisions of section 914 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 684], providing that the practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the Circuit and District Courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding in like causes in the courts of record of the state within which said Circuit or District Courts are held, the court below committed reversible error in allowing the jury to separate on one occasion during the trial without giving this statutory admonition. The record shows that twice upon the first day of the trial of the case, to wit, upon taking a recess at noon, and again upon the adjournment of the court for the day, the court below did duly admonish the jury in accordance with the provisions of the state statute cited. Upon taking the noon recess on the second day of the trial, the court neglected to give the admonition, to which, however, no exception was taken by the counsel for the defendants until the reassembling of the court at the afternoon session. Had the attention of the court been called to its omission in the matter by counsel, no doubt the admonition would have been given; and counsel's failure to note an exception at the time precludes their availing themselves of the omission, even if there were any merit in the contention; but the clear and explicit admonition given by the court below to the jury on two previous occasions was a substantial compliance with the statute, as has been frequently held. Gleason v. Strauss, 5 Kan. App. 80, 48 Pac. 881; Perkins v. Ermel, 2 Kan. 325; Kirby v. W. U. Tel. Co. (S. D.) 55 N. W. 759, 30 L. R. A. 612, 621, 46 Am. St. Rep. 776; Musselman v. Pratt, 44 Ind. 126; People v. Coyne, 116 Cal. 295, 48 Pac. 218; People v. Colmere, 23 Cal. 632.
During the trial of the cause, John Hall having testified that the papers in the attachment suit against him were served by one Link Hummell, after which the witness said something about going to a place called Dupuyer and settling the matter with McKnight, the following proceedings occurred:
"Q. Isn't it a fact that you went to Dupuyer with Link Hummell and during the night you left Dupuyer, went out where the cattle were, took possession of them again, and, instead of continuing on towards Baltic with them, you reversed the course in which you were taking them at the time of the attachment, and took them over to Slim Prendergast's place and secreted them
from the sheriff? By Mr. Rasch: Object to that as incompetent, irrelevant, and immaterial. By the Court: There is a great deal of this that is meant to create a feeling in this matter. Now, what effect would that have? By Mr. McConnell: We are attempting to show that these cattle belonged to John Hall, and that he exercised ownership and control over them. By the Court: No; you are attempting to show that this man did something wrong, and committed a theft. That's what you are."
And upon the conclusion of the instructions to the jury, to which counsel for the defendants entered a number of exceptions, as they had the undoubted right to do, these proceedings occurred:
"By the Court: There is one other thing I will state to the jury. (To Mr. McConnell) You may take an exception to this, too. I have not much patience with an attorney who comes into court and attempts to cast reproach upon some one who is here of a different race, which may be called an inferior race. There are people all over the country, that have Indian blood in their veins, that are respectable people. The present mayor of Chicago has Indian blood in his veins. Your Lieutenant Governor of Montana is a mixedblood Indian, and his mother is a respectable woman. By Mr. McConnell : To those remarks of the court, may it please the court, we desire to enter an exception on behalf of the defendants. I have not attempted to cast any reproach upon an Indian. My criticisms were devoted exclusively to John Hall, who stated he was a white man, and your honor's remarks are highly prejudicial to the defendants' cause."
We have no means of verifying the assertion of counsel for the defendant in error that these remarks of the court were provoked by the argument of counsel for the plaintiffs in error. They were improper, and are much to be regretted. Nevertheless, as we are of the opinion that the instructions of the court properly stated to the jury the law, and covered the case presented, and as we are of the further opinion that a verdict in favor of the plaintiffs in error could not have been properly rendered in view of the evidence in the case, the improper remarks complained of could not have resulted in substantial injury.
The judgment is affirmed.
PRATT v. BOTHE.
(Circuit Court of Appeals, Sixth Circuit. June 29, 1904.)
1. BANKRUPTCY-CLAIMS OF ATTORNEYS-ALLOWANCE.
Bankr. Act July 1, 1898, c. 541, § 60d, 30 Stat. 562 [U. S. Comp. St. 1901, p. 3446], provides that if a debtor shall, directly or indirectly, in contemplation of bankruptcy, pay money or transfer property to an attorney, solicitor in equity, or proctor in admiralty, for services to be rendered, the transaction shall be examined by the court on petition of the trustee for creditors, and shall only be valid to the extent of a reasonable amount, to be determined by the court, and the excess may be recovered by the trustee for the benefit of the estate. Section 64b, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447], provides for an allowance for attorney's services rendered to the bankrupt in assisting him while performing the duties imposed by the act. Held, that section 60d was limited to the allowance of reasonable compensation to attorneys for services rendered to the bankrupt prior to the commencement of the bankruptcy proceedings, and did not cover services rendered in resisting the creditor's petition for an adjudication of bankruptcy.