
    (First Circuit—Hamilton Co., O., Circuit Court,
    Jan. Term, 1899.)
    Before King Haynes and Parker, JJ.
    [of the Sixth Circuit, sitting in the First Circuit]
    SWIFT & COMPANY v. ISAAC LENZER and JOHN MILLER.
    
      Livery beeper's claim for beeping horse superior to that of mortgage on horse—
    Error to the Court of Common Pleas of Hamilton county.,
   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, 11 C. C., 392; that Miller had a lien for expenses, care and keeping of' the.horse prior to the lien and ciaini of Swift & Company, the. mortgagee.

Upon tiie trial of the case tlie 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.

Cobb & Howard, for Plaintiff in Error.

Schivab & Schultz, contra

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.  