5 Mo. 110 | Mo. | 1838
delivered the opinion of the court.
This case was an attachment commenced before a justice of the peace of Cooper county, by Ellison against
The next point made is, that the court instructed- the jury to find for the defendant, which they did. Ellison by his counsel asked the- court to instruct the jury to.find as in case of a non-suit. Then the court instructed the jury to find for the defendant. This instruction, according to the opinion of this court in the case of Sibley v. Hood, took the whole case from the- jury. It is said that what was done here amounts to a demurrer to evidence. If it should be so considered, (which I- do not agree to,) yet; owing to the defect in the bill of exceptions in not stating what the whole evidence was, we cannot know how the matter should have been decided. But because the instruction was wrong, the judgment ought to be reversed; and the other Judges concurring herein, the-same is-reversed,, and remanded for a new trial.