Dissenting Opinion: Brewer, J.

persons than if limited to but one. Some stress seems to be laid in the opinion of the court upon the fact that the defendant's wife was not a competent witness, and that this distinguishes the case from that cited from 14 Gray, and others in which the books abound. While it is true that she could not be sworn and called upon to give testimony, yet she was herself testimony, and material testimony. Take this illustration: Suppose one of the witnesses for the government in this case had testified that while with the defendant at Vian he had seen in his possession a knife of a peculiar make, had there taken it and made a mark upon it, and the government had proved by some other witness that he had seen in the possession of the defendant, on the very morning of the trial, a knife of substantially the same make, and no knife was produced by the defendant; would not the omission to produce that knife be a significant fact, and one which the prosecuting attorney was at liberty to comment upon? If produced, and bearing the mark described by the first witness, it would tend very strongly to support the identification. Just so if this wife of defendant had been in the court-room, and these various witnesses for the prosecution had testified that she was the same woman they had seen at Vian; can there be any doubt that the identification would have been more certain? So, because in the natural progress of the trial, without any misconduct on the part of the prosecution, this fact came to the notice of the jury, and was a fact which would naturally tend to affect the conclusions of menit was a fact in respect to which the prosecuting officer was at liberty to comment, and suggest to the jury his own conclusions therefrom.

Again, the defence in this case was an alibi. The witnesses for the defence who testified to seeing the defendant in Washington County, Arkansas, at or about the time of the alleged murder testified that his wife was with him there; that they had seen her in the city of Fort Smith during the trial, and that she was the same woman with him theretofore in Washington County. It also appeared from the testimony of one witness that she had been in the hall of the court-house,

Dissenting Opinion: Brewer, J.

and that, though in the city, she had not been around with the other witnesses.

Now, commenting upon the testimony, the counsel for the defence could argue to the jury that they had a double identification that of the defendant and that of his wifewhile the government had only one identification, that of the defendant. Was it not a legitimate argument for the district attorney to make in response to this that, if the wife had been. in the court-room by the side of her husband during the trial, as ordinarily she would be expected to be, the government might have had a double itlentification equally with the defendant; and as the testimony further showed that she was in the city, that she came up into the hall of the court-house, and still was not around with the other witnesses for the defendant, so that the government witnesses might have had a chance to meet and see her was it not also a legitimate argument, and was not the district attorney justified in making it, that there was probably a reason for her conduct, and that reason the danger of a double identification? The conclusion, it is true, cannot be positively affirmed to be correct; but surely a case ought not be reversed because the counsel for the government draws erroneous conclusions from the facts developed in the trial. If such a rule were laid down, how many verdicts could stand?

It must be borne in mind that there was nothing denunciatory, harsh, or abusive in the language of the district attorney. He simply commented upon the fact, obvious to the jury, that the wife of the defendant was not in the court-room, although shown by defendant's witnesses to be in the city, and drew his conclusions from such facts. The comment was one which would naturally occur to every man aware of the facts, whether on or off the jury. Can it be that the defendant was prejudiced by that? Ought the deliberate judgment of twelve men as to the defendant's guilt, approved as it was by the judge who presided, to be set aside for an error, if error it be, so frivolous as that?

For these reasons I dissent.

Statement of the Case.

RADER'S ADMINISTRATOR v. MADDOX.

ERROR TO AND APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF MONTANA.

No. 54. Argued October 25, 26, 1893. Decided November 6, 1893.

A number of horses, mortgaged to secure the payment of a promissory note of their owner given to the mortgagee, were, under the provisions of a statute of Montana relating to chattel mortgages, sold by a sheriff on the maturity of the note without payment. With the assent of the attorney of the mortgagee, who was present at the sale, the purchaser paid a part of the purchase price in cash, and left the horses with the sheriff as security for payment of the remainder in five days. On the expiration of that time he failed to pay the balance. The attorney refused to receive the sum paid in cash and the horses as security for the remainder; but the principal received the amount paid in cash, and sued the sheriff and his bondsmen to recover the remainder. Held, that he could not repudiate the transaction in part and ratify it in part; and that having ratified it in part by the receipt of the sum paid in cash, he could not maintain this action.

THIS case came from the Supreme Court of the Territory of Montana, and presented the following facts: William Rader, one of the defendants in the case as commenced in the District Court of that Territory, was sheriff of Meagher County, Montana, and the other defendants were his bondsmen. Maddox and Gaddis were the owners respectively of two notes, given by P. D. Kinyon, and secured by a chattel mortgage on some four hundred horses. At that time there was in force in Montana the following statutory provision:

"It shall be lawful for the mortgagor of goods, chattels, or personal property to insert in his mortgage a clause authorizing the sheriff of the county in which such property or any part thereof may be, to execute the power of sale therein granted to the mortgagee, his legal representative and assigns, in which case the sheriff of such county, at the time of such sale, may advertise and sell the mortgaged property in the manner prescribed in such mortgage." Compiled Statutes of Montana. § 1550.

Statement of the Case.

This mortgage contained the clause referred to in the statute. On the maturity of these notes, and on the 9th day of August, 1887, one N. B. Smith, an attorney at law, as attorney for Maddox, placed in the hands of sheriff Rader this mortgage, endorsed as follows:

"You are hereby authorized to execute the power of sale contained in a certain chattel mortgage, of which the within is a true copy.

"FLETCHER MADDOX & WILLIAM GADDIS,

"By N. B. SMITH, Their Agent and Attorney."

Rader collected the horses, and advertised them for sale. At the day of the sale a party by the name of A. B. Kier was a bidder, and after some horses had been knocked down to him, Raderno money having been paid refused to receive any further bids. Thereupon Kier represented that he had in the bank $1752; agreed to turn that money over to the sheriff, and leave with him all horses that should be knocked down to him; and further, that if, in five days, he should not complete the payment, both money and horses should be forfeited. Neither Maddox nor Gaddis were present, but Smith their attorney was. The matter was referred to Smith, and he directed the sheriff to continue the sale and receive the bids of Kier. Horses to the amount of $8096.50 were struck off to Kier. The $1752 was deposited with the sheriff, and the horses were left with him. Kier failed to complete his purchase by the payment of the balance of the money. After the five days had expired, the sheriff tendered the $1752 and horses to Smith, for Maddox and Gaddis, but Smith declined to receive either. Thereafter, Maddox and Gaddis took the money, but declined to receive the horses. The sheriff received no other instructions, and after holding the horses for about a month turned them over to his bondsmen, and Maddox and Gaddis, one as plaintiff and the other as intervenor, brought this suit to recover the difference between $1752 and $8096.50. They obtained judgment in the District Court, which judgment was affirmed by the Supreme Court. Maddox v. Rader, 9

VOL. CL-9

Opinion of the Court.

Montana, 126. From that judgment the sheriff and his sureties brought the case here by both writ of error and appeal.

Mr. H. T. May, (with whom was Mr. A. H. Garland on the brief,) for plaintiffs in error and appellants.

Mr. Fletcher Maddox in person for defendants in error and appellees. Mr. M. F. Morris filed a brief for same.

Mr. James Hoban filed a brief for Gaddis, intervenor.

MR. JUSTICE BREWER delivered the opinion of the court.

On the trial of this case, all the testimony offered by the defendants to show the circumstances of the sale was on motion of the plaintiffs stricken out by the court. For the purpose of this hearing, therefore, it must be assumed that the facts were as this testimony tended to show that they were. The owners of these notes and mortgage were not present at the sale, but were represented by their agent and attorney, and by his direction the sheriff received the bids of Kier up to eight thousand dollars and upwards, and, as security for the completion of those purchases, retained all the property bid for, and in addition received $1752. The contention of the mortgagees is, that an attorney has, in the absence of special authority, no power to make a sale on credit, or to receive anything other than money on a claim placed in his hands for collection. Without questioning the truth of that proposition, it seems to us that it is inapplicable. No completed sale was made, no title passed; and while these horses were struck off to Kier, the transaction was evidently merely a conditional sale, to be perfected if, and only if, within five days the balance of the purchase money was paid.

But it is unnecessary to pursue any inquiry in this direction, for upon a very clear rule of law the mortgagees are estopped from maintaining this action. The arrangement, whether within or without the power of the attorney, was made and carried into effect by his directions, and it was an arrangement by which