Stumps v. Kelley. WALKER, J. This was an action on the case brought in Cook County Court of Common Pleas to the September term, 1857, by appellee and against appellant. The first count of the declaration alleges, that appellant did, theretofore wrongfully and injuriously, keep a certain red and white cow, well knowing that the same was accustomed to hook, attack and push with her horns; that the cow did attack and push with her horns, the plaintiff, and greatly wounded, bruised and injured the shoulder and arm of the plaintiff, whereby she became sick, etc., for a long space of time, and was injured in consequence, in her health and constitution, and was prevented from pursuing her ordinary avocation, etc., and was put to great expense, etc., in being cured. The second count is similar to the first, only it avers that defendant, knowing the vicious propensity of her cow, and that she was accustomed to hook mankind, did not restrain and confine her cow, but suffered her to run at large, and that the cow, on the eleventh day of August, 1857, attacked and hooked plaintiff, whereby she was greatly injured. The defendant filed the plea of general issue, to which the similiter was added. At the November special term, 1857, the cause was tried by the court and a jury, and resulted in a verdict in favor of the plaintiff for $500. The defendant moved the court for a new trial, which motion was overruled, and a judgment entered on the verdict against the defendant, from which she appeals to this court. It is assigned for error, that the precipe for the summons was filed by an attorney and not by prochein amy or guardian. It is said in Archibald's Prac., vol. 2, p. 154, that in actions brought by infants that, "The process is the same as in ordinary cases, and may be sued out in the name of the infant before any prochein amy or guardian is appointed." It then appears to be unnecessary that there should be even a guardian or prochein amy for the minor at the time of suing out process, and that it is the same, and may issue as process in other cases. But even if it was irregular, which we by no means concede, it should have been taken advantage of, by plea in abatement or motion to quash, and was cured by pleading in bar. And that the similiter was added by attorney was not error. The defendant himself may add it to the general issue, and it is not error to proceed to trial without it. Where a plea properly concludes to the country, it is only form to add it, and it can make no difference by whom it is done. Courts are created and established for the administration of justice, and all legal and proper means should be employed for the attainment of that end. And how it can be error for the Stumps v. Kelley. court to instruct the jury as to the law of the case, whether asked to do so or not, we are at a loss to conjecture. We have been referred to no authority that so holds, and we cannot imagine that such can exist. One of the very objects of having a judge is to instruct the jury on the law applicable to the case. Instead of its being error for the court on its own motion to instruct, where it seems to be required by the justice of the case, it is rather the duty of the judge to give such instructions. The instruction given by the court in this case, without being requested by either party, we think embraced the law as applicable to the case, and it is not denied that it does. And we have no hesitation in saying that so far from its being error, that the court acted in strict conformity with the duty imposed by the oath of the judge, and the requirements of the law. There is no error perceived in refusing to instruct the jury to find for the defendant as in a case of non-suit. Such a practice has never obtained in this State, and this court has held that such a course is not sanctioned by our practice. Again, there was most certainly evidence tending to establish the plaintiff's demand, and whenever that is the case, however slight, it is a question solely for the jury and not for the court. To hold otherwise would be to usurp the right to try the facts in a case, by a court, when the right is vested in the parties, to have such questions determined by a jury. It is also urged that the verdict of the jury is against the evidence, and therefore the court erred in not granting a new trial. That there was contrariety in the testimony, and that there may be doubt as to which way the weight inclines, is true. But that has never been held sufficient to disturb the finding of a jury. Before courts can interfere with their finding, it must appear to be clearly against the weight of the evidence, and such is not the case here, and we think it fully sustains the finding, and no error was committed by the court in refusing to set it aside. The next assignment of error, is that the verdict is against the law of the case. It is a maxim of the law that every man may use his own in any manner he may choose, so that he does not thereby injure another. One person has no right, in the exercise of a trade or business, to endanger the life or health of another, nor by so doing to inflict an injury upon the person or property of another, while pursuing his lawful avocations. While appellant had the undoubted right to hold and enjoy the property, the appellee had the right to pass the public highway without being injured by the property of appellant. And appellant failing to restrain this animal, after knowing its propensity to hook persons, is liable for the injuries that may result to per Dexter v. Parkins. sons by her running at large. "But if the ox were wont to Judgment affirmed. JOHN DEXTER, Appellant, v. JOHN PARKINS, Appellee. APPEAL FROM PEORIA COUNTY COURT. The wife of a defendant in execution, is not a competent witness, on a trial of right of property. A preferred creditor has no greater right to personal property, than a purchaser for a valuable consideration, as against judgment creditors. Dexter v. Parkins. On the trial of right of property, a recital in the execution of the rendition of the judgment is sufficient proof of the judgment; the claimant by giving notice, admits the regularity and existence of the proceedings against the defendant. THE property in question was levied upon by virtue of an execution upon a judgment before a justice of the peace, in favor of John Dexter against John Smallridge, dated 5th December, 1857, on judgment recovered by said Dexter against Smallridge, on 5th December, 1857, for $110 and costs, and the property levied upon as the property of Smallridge by a constable, on the 15th day of December, 1857. Parkins claimed the property as his, and had a trial of the right of property before the justice of the peace, on which trial the jury rendered a verdict in favor of Dexter against the claimant, from which trial an appeal was taken to the County Court of Peoria county. At the December term of said County Court, 1857, a jury trial was had, and verdict was rendered for the claimant, from which last trial this appeal is taken. On the trial of said cause in the said County Court, the plaintiff below offered the wife of the defendant in execution, Jane Smallridge, who acted as clerk and agent of her husband in the transaction of his business, as a witness on the trial of said cause, to which the defendant objected. The Court overruled the objection, and allowed the witness to give testimony in said cause. The defendants below asked the Court to instruct the jury as follows: 5. That a bill of sale is fraudulent and void, as to creditors and third persons, unless possession of the property specified therein, actually followed from the vendor to the vendee, according to the terms of said bill of sale. 6. That possession is prima facie evidence of ownership, and in case of sale of goods or chattels, if possession of said goods remain with the, seller or vender, the sale is fraudulent and void. per se (of itself,) as to creditors and third persons, and cannot be rebutted by evidence of fair intention. But the court refused to give the instructions asked, but modified them by addressing the following, to wit: "Whereupon the court amended the fifth instruction by writing the words not being a preferred creditor,' after the word vendee,' in said fifth instruction, and amended the 6th instruction, by adding the words unless such sale was to a preferred creditor, and in payment of a just debt.'" And now comes the said John Dexter, and assigns for error that said court erred in allowing Mrs. Smallridge, wife of the Dexter v. Parkins. defendant in execution, to testify in said cause; and in amending the fifth and sixth instructions, as asked for by said Dexter. LINDSAY & LANDER, for Appellant. H. GROVE, for Appellee. BREESE, J. The questions arising on this record are, first, as to the admissibility of the wife of the defendant in execution, as a witness on the part of the claimant of the property under a bill of sale, made by such defendant, and second, on the instructions. Section twelve of the act respecting the trial of the right of property, provides (Scates' Comp. 1116,) that in no case of such trial shall the defendant in execution be a competent witness. In first Greenleaf on Evidence, Sec. 341, it is said, where the husband or wife is not a party to the record, but yet has an interest directly involved in the suit, and is therefore incompetent to testify, the other also is incompetent, and instances the case of the wife of a bankrupt being called to prove the fact of his bankruptcy which she is not permitted to do. Ex parte James, 1 Peere Williams, 610. Nor can the husband be a witness for or against his wife, in a question touching her separate estate even though there are other parties to the record in respect of whom he would be competent. 1 Greenleaf Ev., Sec. 335. In Davis v. Dinwoody, 4 Durnf. & East, 370, Lord Kenyon said, Independently of the question of interest, husbands and wives are not admitted as witnesses for or against each other, from their being so nearly connected they are supposed to have such a bias upon their minds that they are not to be permitted to give evidence either for or against each other, and so said Buller, Justice, in the same case, and this is considered we believe to be well settled law. It was argued in this case of Davis v. Dinwoody on the objection to the competency of the witness that he was interested, it was answered, that he came to speak against his interest, for that if these goods which had been seized, were not his own and could not be taken to pay his debt he would be liable afterwards, whereas if they could be taken in execution his debt would be discharged. So in this case, if the goods seized by the constable were not Smallridge's and could not be taken to pay his debt he would be liable afterwards, whereas if they could be taken his debt would be discharged. But the court say, interest is not the test. It is the bias supposed to exist upon the mind of husband or wife which excludes them. But our statute expressly ex |