SUPREME COURT OF UTAH.

HILL ET AL. v. SEAGER.

Filed April 15, 1884.

REPLEVIN OF JOINT PROPERTY.-Personal property incapable of division, and owned by two or more joint owners, or tenants-in-common, cannot be replevied by one or more of such owners from the owners who have the exclusive possession thereof.

APPEAL from a judgment of the district court, entered in favor of the defendant. The opinion states the facts.

TWISS, J. This is an action to recover possession of a horse described in the complaint, and therein alleged to be the joint property of the plaintiffs and the defendant who were jointly entitled to the possession of the same; but that the defendant being in possession thereof converted it to his own use and refused to permit the plaintiffs to use or to exercise any control over or to have possession of the horse, either by themselves or jointly with the defendant. That the plaintiffs being entitled to the immediate possession of the horse demanded possesion of the same of the defendant, who refused to deliver it to them. Whereupon they pray judgment for the possession of the horse, or in case it cannot be delivered, for the value thereof--the sum of one hundred and fifty dollars.

To this complaint the defendant demurs and assigned among other grounds of demurrer "that the complaint does not state facts sufficient to constitute a cause of action.'

The statutes of this territory have somewhat changed the law of replevin, but contain no provision sufficiently radical to permit one joint owner to replevy from his co-tenant or joint owner their indivisible property, the possession of which one of them is as much entitled to as the other.

The rule of law that indivisible personal property owned by two or more joint owners or tenants in common cannot be replevied by one or more of such owners from the other or others is quite uniform and almost without exception: Wells on Replevin, 86 and note; Davis v. Sottich, 46 N. Y. 393; Walker v. Funne, 28 Ala., 373; Kimball v. Thomson, 4 Cush, 441-447.

The plaintiffs rely upon Schwartz v. Shuiner, 47 Cal. 6. This case was under a statute providing that tenants-in-common may jointly or severally bring or defend any civil action for the enforcement or protection of the rights of such party" and was in form replevin for seventeen-thirtieths of the furniture used in a hotel; the complaint also containing all the allegations essential in trover, all of which were sustained by the findings, and the findings expressed all the facts in the case. The court reversed the judgment of the district court which was for the defendant "with direction to render judgment for the plaintiff on the findings."

That case is distinguishable from this in this respect. It was brought to recover a certain specified part of a property susceptible

of division; but it is unsatisfactory in any view that may be taken of it as an authority in this case, especially if read in the light of Hewlett v. Owens et al, 50 Cal. 474 in which the court (speaking

of the parties) says: "Being tenants in common, neither could under the circumstances appearing in this case maintain replevin against the other nor against the vendee of the other." This is in harmony with the almost unbroken current of authority and not inconsistent with the California statutes.

If a joint tenancy of the plaintiff and defendant in the demanded property is disclosed by the allegations of the complaint, the suit cannot be maintained: Wells on Replevin, p. 88, sec. 154; and under our practice act the issues tendered by such allegations may be raised and decided on demurrer: C. L. sec. 1265.

The judgment of the district court in sustaining the demurrer is correct and should be and is affirmed.

HUNTER, C. J. and EMERSON, J., concurred.

ANTHONY ET AL v. SAVAge.

Filed January 31, 1884.

DEPOSITION-ADMISSIBILITY OF, AT SUBSEQUENT TRIAL-A deposition taken pending the action is admissible at the trial thereof, although subsequent to the taking of such deposition the complaint has been amended, provided the subject matter of the action and the issues therein have remained substantially the same.

IDENTITY OF DEbt Sued on EVIDENCE OF-In an action founded on a promise to pay a debt barred by the statute of limitations, evidence to identify the indebtedness with the promise is admissible.

Appeal from an order of the district court granting the plaintiffs a new trial. The opinion states the facts.

TWISS, J. This case was commenced in October, 1876. Upon trial the plaintiffs recovered a verdict, and from the judgment thereon_the_defendant appealed to this court, where the case was reversed and remanded: 2 Utah, 466.

Since then two amended complaints have been filed. The record including the affidavits presents a mixture of statement, testimony, objection and rulings, orders and exceptions thereto, from which it is quite difficult to separate the material points of law at issue from the confused and immaterial mass of matter contained in what is called a "transcript on appeal.'

The amended complaint, upon which the last trial was had, was filed in September, 1880, and contained in substance allegations that on the thirteenth day of October, 1873, the defendant was indebted to the plaintiffs in the sum of $2,112.60 upon certain business dealings and transactions between them; that at sometime before the tenth day of October, 1874, and subsequent to the thirteenth day of October, 1873, the defendant, in consideration of said indebtedness, in writing acknowledged such indebtendess and promised to pay the same to the plaintiffs in a reasonable time thereafter;

that upon such acknowledgment and promise the plaintiffs gave and allowed to the defendant until the second day of October, 1876, in which to pay the same, and that defendant has wholly neglected to pay the whole or any part thereof save and except only the sum of seven hundred and four dollars and twenty cents, and asks judgment for the alleged balance of fourteen hundred and eight dollars and forty cents.

The defendant in his answer denies that there ever was at any time any business transactions between the plaintiffs and defendant out of which said alleged indebtedness did or could arise; denies the alleged indebtedness on the thirteenth day of October, 1873, and the existence of the said alleged balance of indebtedness, or any part thereof, and alleges that said supposed cause of action did not accrue within four years next preceding the commencement of this action. Under the direction of the court, the jury found a verdict for the defendant. A motion for a new trial was made and sustained, from which order of the court sustaining the motion and granting a new trial, appeal is taken to this court.

Upon the trial the plaintiffs offered to read in evidence the depositions of Vincent M. Wilcox and Charles Both, on file in the case, which it seems were taken at the instance of the plaintiffs, sometime pending the action. The record contains no part of these depositions, and therefore this court has no knowledge as to their competency as evidence in the case, but they were offered for the purpose of showing the origin and existence of a debt due from the defendant to the plaintiffs, and an acknowledgment of and promise to pay it by the defendant to the plaintiffs, and the identification of it as the debt sued upon. To the reading of which the defendant objected, on the ground that the allegations of the original complaint had, by the two amended complaints, been so changed that the particular issues of the case at the time made another case, and that the depositions were not taken with reference to the issues as they were at the time of trial.

From the several complaints, offers to introduce testimony, objections thereto, and the arguments of counsel, it is quite clear that the indebtedness claimed by the plaintiffs to be due to them from the defendant, has all of the time been the same, however it may have been described or claimed to have been evidenced in the original or amended complaints.

The allegations of the complaints have been changed to meet and overcome the objections of the defendant, and to conform to the rulings of the court; but the subject matter of the action has always been an alleged acknowledgement and promise to pay an alleged indebtedness resulting from or growing out of business transactions between the plaintiffs and the defendant, whether described as an account stated, or a promise in writing to pay the debt; in all of the complaints the identity of the cause and original indebtedness have been the same: Perin v. Keene, 19 Me. 355; Brackett v. Crook, 24 N. H. 173; Carroll v. Cook, 8 Ser. and R. 287; Stetman v. Mudgett, 10 N. H. 338; Buxton v. Edwards, 134 Mass. 567-578.

Therefore the objection to the depositions was not good; as the purpose for which they were offered was material to the issues such part of them (if any) as would sustain the issues should have been admitted. As the depositions are not before us we do not undertake to determine that the testimony of the deposing witnesses or any part thereof was admissible, we pass only upon the objection raised.

The plaintiffs offered to read in evidence three bills of exchange dated respectively on the eleventh of Dec., 1869, the eighteenth of January, 1870 and eighteenth of Feb., 1870, each for the sum of seven hundred and four dollars and twenty cents drawn by the plaintiffs upon, and accepted by Savage & Ottenger, which offer was accompanied with the assertion on their part that they would prove if permitted that Savage & Ottenger were at the date of the drawing and acceptance of the bills of exchange partners-that subsequently in the fall of 1870, they dissolved, and by the terms of dissolution, Savage was to pay these bills of exchange, and that the indebtedness evidenced by them was the identical indebtedness which the defendant had promised to pay to the plaintiffs which promise is the basis of this action. This evidence the defendant objected to, and the court sustained the objection.

A debt is a sum of money due from one person or party to another. The offer on the part of the plaintiffs to introduce testimony tending to show an indebtedness from Savage to the plaintiffs in 1870, accompanied with an offer to prove that the defendant promised to pay the plaintiffs the identical indebtedness evidenced by these bills of exchange was an offer to introduce testimony tending directly to sustain the issue on the part of the plaintiffs, and the testimony should have been admitted.

There are several other assignments of error, but as the foregoing is, in our opinion, decisive of the case, we express no opinion as to the others.

The order of the court sustaining the motion for a new trial should be and is affirmed.

HUNTER, C. J., and EMERSON, J. concurred.

BOOK REVIEWS.

DESTY'S FEDERAL PROCEDURE. A manual of practice in the courts of the United States, embracing the provisions of the constitution, the revised statutes and amendments thereto relating to federal courts; together with the rules promulgated by the supreme court of the United States. With notes of decisions. By Robert Desty, attorney at law. Sixth edition, revised. Sumner Whitney & Co., San Francisco. 1884.

HAWES ON PARTIES TO ACTIONS. The law respecting parties to actions, legal and equitable. By Horace Hawes, counselor at law. Sumner Whitney & Co., San Francisco, 1884.

BOONE ON REAL PROPERTY. A manual of the law of real property, including also general rules of law relating to the purchase and sale of real property, or law of vendor and purchaser, as determined by the leading courts of England and the United States. By Charles T. Boone, LL. B., author of "Law of Corporations," etc. Sumner, Whitney & Co., San Francisco. 1883.

STEWART ON MARRIAGE AND DIVORCE. The law of marriage and divorce, as established in England and the United States. By David Stewart, of the Baltimore bar; joint author of Stewart & Carey's "Law of Husband and Wife in Maryland." Sumner Whitney & Co., San Francisco. 1884.

The foregoing four books are the latest additions which Sumner Whitney & Co. have made to their Practitioner's Series. Besides the works mentioned above, this series now includes Boone's Law of Corporations; Desty's American Criminal Law; Desty's Removal of Causes; Desty's Federal Constitution; Lubi's Equity Pleading; Barber's Principles of Law of Insurance; Desty's Shipping and Admiralty; Desty's Commerce and Navigation. The publishers have also in press, or in active preparation, the following: Boone on Mortgages; Stewart on Domestic Relations; Reardon's Dicey on Domicile; Hutchinson on Negotiable Instruments; Newmark on Sales; Wade on Trust; Baylies on Damages, and Campbell on Agency. The publishers announce their intention to continue this series until every important title of the law has been covered.

The value of this series to the practicing lawyer can hardly be overestimated. The books of which it is composed, while not pretending to be exhaustive treatises, claim to be, and are, succinct statements of the existing law on the subjects of which they respectively treat. They are all written on the same general plan, the aim of their authors being,