Maddox v. Reynolds

Hughes, J. (after stating the facts). Instruction No. 4 is incorrect in this, that it leaves to the jury the question of whether the “goods in their character were not subject to division,” because the evidence showed the stock of goods was a miscellaneous stock kept for retail, and it is evident that they were subject to division, there being no evidence to the contrary. The court erred in refusing to modify instruction No. 8, as asked by the appellant, and also in refusing to give instruction No. 2, as asked by the appellant. We cannot well imagine what would be better notice of the claim of another to the property in controversy than the seizure of it under an attachment. If the principle announced in the modification asked by the appellant of No. 8 may be said to have been included substantially in another instruction that had been given, nevertheless instruction No. 8, without this modification, announced a different doctrine, and was •contradictory, and was' not proper without modification. For errors indicated, the judgment is reversed, and the cause remanded for new trial.