Statement of the Case.

The cattle were seized on July 27, and released on August 21, upon payment of $12,725.50. At this time Wilson, as treasurer, executed the following receipt:

"YAMPA, ROUTT Co., COLO., Aug. 21, 1888. "Received of Wilson Rankin for Ora Haley a certified check of Frank X. Aicher, on the German National Bank of Denver, Colorado. This payment, it is understood, is paid in full settlement for the taxes of Ora Haley for the year 1884 under protest, and to release cattle now distrained for said taxes."

Haley testified that the Haley Live Stock Company became the owner of these cattle about the 24th of July by purchase from one Timothy Kinney; that Haley organized the company with a capital stock of 3000 shares, of which he owned 2990, the remaining ten shares being owned by four others; that the consideration for the cattle "was somewhere near the capital stock of the corporation;" that he, Haley, originally owned the cattle and had sold them to Kinney for about $300,000, taking his note and a chattel mortgage for the amount; that subsequent to this seizure Kinney brought suit in equity to enjoin the sale of the cattle for the taxes, upon the hearing of which suit both Haley and Kinney testified that the cattle were Kinney's property at the time of the seizure; that the sale to Kinney was bona fide; but that it was understood from the beginning that just as soon as the company was formed it was to take the property, Haley being advised "that that was a better method to get a corporation and have the property conveyed to it from a third party;" that the cattle were transferred to the company for the purpose of litigating the taxes in the Federal court. Haley further testified that "the minute the corporation had formed and was in shape to acquire title to it, it was the understanding between Hass, Kinney, and myself that that property was to be the property of the Haley Live Stock Company again."

"Q. Then the delivery was a mental operation, was it not? "A. Yes; I expect it was.

Statement of the Case.

"Q. You heard your affidavit read, made on the 4th of August, in which you testified that that property belonged to Timothy Kinney and was then in his possession. Was that true or was it false?

"A. Well, it was. He was one of the possessors. There had been no formal delivery of the property; only this understanding with the corporation."

It further appeared that, about 1885, he obtained an injunction against the collection of this tax, which was dissolved, that he then obtained a second injunction, which was dissolved by the Supreme Court, and the suit dismissed, Breeze v. Haley, 10 Colorado, 5; that he then obtained a third injunction, which was again dissolved, and the suit dismissed, Breeze v. Haley, 11 Colorado, 351; that he thereafter obtained a fourth and a fifth injunction, both of which were dissolved by the District Court of Arapahoe County, Colorado; that he took one of these cases to the Supreme Court of the United States, Haley v. Breeze, 144 U. S. 130; and that he obtained a release of the cattle under all these injunctions, except the last one.

The testimony of Wilson Rankin for the plaintiff was to the effect that he was in charge of the cattle at the time they were seized; that at the time of the payment he demanded a receipt in the name of the Haley Live Stock Company, which was refused, and a receipt taken in the name of Haley; that at the time of the seizure he was working for Kinney and knew nothing about the Live Stock Company; that he got a check from Haley, and that the first time he ever mentioned to Wilson or any one else the name of the company was when he asked for the receipt.

Defendants offered testimony tending to support the allegations of their answer; produced the tax roll in evidence; and showed that the Live Stock Company was never heard of by them until the day the taxes were paid and the cattle released.

The court submitted to the jury the question whether the money was paid by the Haley Live Stock Company or by Mr. Haley himself. The jury returned a verdict for $5266.92, upon which judgment was entered, and defendants sued

Opinion of the Court.

out this writ of error, assigning as error certain questions arising upon the admission of testimony and the charge of

the court.

Mr. Daniel E. Parks and Mr. H. B. Johnson for plaintiff in error.

Mr. W. T. Hughes for defendant in error.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

We shall not find it necessary to dispose of all the errors assigned to the action of the court below, as many of them are not properly presented by the record.

1. Upon the conclusion of the plaintiff's testimony, defendants moved the court to direct a verdict in their favor upon several grounds, among which were that the organization of the plaintiff corporation was fraudulent, and solely for the purpose of invoking the jurisdiction of the Federal court; that the property in question was never conveyed to the plaintiff until after the trespass was committed, and therefore it could not sue for the same; that the pretended conveyances from Haley to Kinney and from Kinney to plaintiff were without consideration and fraudulent; and there had been no delivery of the property to the plaintiff prior to the alleged trespass. The court denied this motion, and the defendants excepted. They did not, however, stand upon their exceptions, but proceeded to introduce testimony in their own behalf, and thereby, as we have repeatedly held, waived their exceptions. Bogk v. Gassert, 149 U. S. 17, 23. Nor did they renew their motion upon the conclusion of the entire testimony, as they might have done. This disposes of the third assignment of error, "that the court erred in overruling the motion of the defendants, made at the conclusion of the evidence of plaintiff, to instruct the jury to find a verdict for defendants." As the fourth, fifth, and sixth assignments are only to the opinion of the court in denying such motion, they must share the fate of the third. In addition to this, how

Opinion of the Court.

ever, the reasons given by the court for its action upon the principal motion are not the proper subjects of exception. If the exception was improperly overruled, the reasons given by the court for its action are of no consequence.

2. There was an exception taken, however, to the following extract from the charge, which is also assigned as error, namely: "That if you believe from the evidence that this money was paid over by the Haley Live Stock Company, and not by Mr. Haley himself, then the plaintiff would have the right to recover it back as having been exacted under circumstances which showed no authority upon the part of Mr. Wilson to get it."

This charge must be taken in connection with the pleadings in the case, and can only be justified upon the theory that, consistently with the allegations of the complaint, plaintiff had a right to recover, if the money paid to obtain the release of the cattle was paid by the Haley Live Stock Company, and not by Mr. Haley himself. It is true that this portion of the charge was excepted to upon the ground that it assumed the invalidity of the tax proceedings; but, as it went to the foundation of the action, we think it may be construed as raising the same question that was raised at the conclusion of the plaintiff's testimony, viz., the right to recover upon the allegations of the complaint, and the admitted facts of the case.

The gist of the complaint is contained in the fifth paragraph, which is as follows: "That on or about July 27, 1888, the defendants, by force and arms, seized and took from the plaintiff about seven hundred head of beef cattle, which were bunched up and were being driven to market by plaintiff, and that, after seizing and taking from plaintiff said cattle, defendants drove said cattle great distances, and kept them. bunched together, and greatly injured said cattle, and caused them to deteriorate and lose flesh, until on August 21, 1888, plaintiff was compelled to pay defendants a sum demanded by them of plaintiff, to wit, $12,725.50, as a condition precedent to defendants surrendering possession of said cattle to plaintiff."

This is, in its nature, a count in trespass de bonis asportatis,

Opinion of the Court.

for the taking and detaining of personal property, and can only be supported upon the theory that plaintiff was either the owner of the cattle, or entitled of right to the possession of them at the time of the trespass complained of. 1 Chitty on Pleading, 189.

The allegation that plaintiff was compelled to pay defendants a large sum of money to obtain the release of the cattle is, to all intents and purposes, an allegation that plaintiff suffered this amount of damages by reason of the unlawful seizure of its cattle, in addition to the damages suffered in driving said cattle great distances, keeping them bunched together, and causing them to deteriorate and lose flesh. Now, there is no evidence which would justify a jury in finding that plaintiff was the owner or entitled to the possession of the cattle until some time after the 27th of July, when the trespass is alleged to have been committed. By the articles of incorporation of the Haley Live Stock Company it was not authorized to begin business until the first day of August, 1888; and although these articles were filed in the county recorder's office of Pottawattamie County, Iowa, as early as July 24, they were not filed for record in the State of Colorado until August 10, fourteen days after the trespass was committed. In addition to this it appears that, in the suit in replevin instituted by Kinney against these same defendants, Wilson and Breeze, to obtain possession of these cattle, Haley, purporting to act as agent for Kinney, made affidavit on August 4 that Kinney was the owner of and was then lawfully entitled to the possession of the cattle in question.

Notwithstanding this, Haley swore that the Live Stock Company, of which he himself was practically the sole incorporator, became the owner of these cattle on the 24th of July, by purchase from Kinney, though he admits there was no formal delivery or transfer of possession. The truth seems to be that the company was organized for the sole purpose of bringing this suit as a non-resident; that Haley swore that the cattle became the property of the company on about July 24 simply because the company filed its articles of incorporation in Pottawattamie County, Iowa, upon that day; that no