
    Lott v. Keach.
    On the trial of the right of property in certain cattle levied on as the properly of the husband and claimed by the wife, the return of the sheriff was that he had levied on the cattle on the premises of Robert A. Lott,” the husband: Held, That the burden of proof lay on the wife, the claimant.
    
      The law creates a presumption that all properly held by husband and wife is common property, and subject to the payment of the debts of the husband. (Note 70.)
    Where the judgment is correct as to the principal defendant, he cannot assign errors as to his sureties who have not appealed. (Note 71.)
    Note 70. — Wright v. Hays, 10 T., ISO; Chapman v. Allen, 15 T., 278.
    Note 71. — Smith v. Allen, 28 T., 497.
    Appeal from Washington. This was a trial of the right to certain property levied on hy virtue of an execution in favor of the appellee against Robert A. Lott, the husband of the appellant. The sheriff made return upon the execution of a levy on certain cattle “ on the premises of Robert A. Lott.” The appellant claimed the property and gave bond for the trial of the right of property. At the trial the court ruled that the burden of proof was on the claimant. The jury returned a verdict in favor of the plaintiff in execution; whereupon the court adjudged the property subject to the execution, and gave judgment against the claimant and the sureties upon the bond given for the trial of the right of property. There was a motion for a new trjal overruled, and the claimant appealed.
    
      Webb, for appellant.
    I. The judge at the trial ruled that the onus of proof was on the claimant. This was error; (Acts 1848, p. 141, sec. 3.) The possession of the husband was the possession of the wife, lie being the administrator of her separate property during the coverture. (4 N. S., 411.)
    H. The'judgment against the securities on the claim bond for damages is erroneous. (Acts 1848, p. 140, sec. 1.) The securities only bound themselves for the return of the property, not to pay damages. The plaintiff in execution could have insisted on a dismissal of the claim for the want of a sufficient bond under the statute, but having elected to accept the bond, he was bound by its terms. He could not impose obligations upon Ihe makers that they did not assume. (3 Wash. C. O. R., 10; 3 Mass. R., 305.)
    
      Gillespie and Sayles, for appellee.
    The presumption, from the fact of the possession of the husband, was that the property belonged either to the husband or to the community.
   Wheeler, J.

The act prescribing the mode of trying the right of property levied on by virtue of an execution (Acts of 1848, pp. 140, 141, sec. 3) provides that “if the property claimed was taken from the, possession of the claimant, then the burden of proof shall be upon the plaintiff' in the original execution;” * * * “but if the property so claimed was taken from the possession of any other person than snob claimant, then the burden'of proof shall be upon such claimant.” The return of the sheriff showed that tiro property in question was taken from.the possession of the defendant in execution. The ruling.of the court, therefore, appears to have been in accordance with the express direction of the statute. It was manifestly correct for the further reason that the law creates a presumption that all property holden by husband and wife is common property and subject to payment of the debts of the husband, and the burden of proof to repel that presumption and show' that it was her separate property devolved upon the wife. (7 Mart. R., 302; 1 La. R.. 200.)

It is objected that the judgment is erroneous as against the sureties upon the bond, in giving damages when the bond was not conditioned for the payment of damages. The sureties have not joined in the appeal. And as there is no error in the judgment against the appellant,, it must be affirmed. (Ante, 248.)

Judgment affirmed.  