
    REPLEVIN — CHATTEL MORTGAGES — BAILMENT.
    [Hamilton Circuit Court,
    1899.]
    King, Haynes, and Parker, JJ.
    (OÍ the Sixth Circuit, sitting in the First Circuit.)
    Swift & Co. v. Isaac Lenzer and John Miller.
    Leen oí Bailee and Chattel Moetgaqee.
    The lien for keep, feed and care of a horse, under an agreement with the owner, or mortgagor, is superior to that of a chattel mortgage although the agreement was subsequent in date to the mortgage.
    Error to the Court of Common Pleas of Hamilton county.
    Cobb & Howard, for plaintiff in error.
    Schwab & Schultz, contra.
    
   Haynes, J.

In this case Swift & Company replevined a horse, owned by Isaac Lenzer, by virtue of a chattel mortgage the company held upon the same. The horse at the time of the replevin was in possession of the defendant* John Miller, under an agreement made with Lenzer, who had possession of the horse at the time of the agreement, to keep, feed and care for the same, but which agreement was made after the giving of the mortgage. Held, — following and approving Aylmore v. Kahn, 5 Circ. Dec., 4101 That Miller had a lien for expenses, care and keeping of the horse prior to the lien and claim of Swift & Company, the mortgagee.

Upon the trial of the case the defendant’s attorney offered evidence tending to prove value of the horse. Upon objection of the plaintiffs” attorney the evidence was taken from the, jury by the court, and no evidence was given by either party of value. After the jury had been charged by the court and the jury sent out, the court sent for the jury and said that the ruling excluding the evidence given by the witness of value of the horse would be recalled. To this counsel for plaintiff objected and excepted. A majority of this court think that the court erred in so doing, and also erred in stating to the jury the rule of damages and in the issues submitted to them.

The judgment of the court is therefore reversed, and the verdict set aside and the cause remanded.

On first point decided all concur; on reversing the judgment on points last stated, Haynes and King concur, Parker dissents.  