#### James H. Knowlton, et. al., Pl'ffs in Error *vs. Amos*H. Culver et al., Def’ts in Error.

*Primp fffeie,*in judicial .proceedings, the few tafites, that tb&acts necessary to be done, take place, is the order necessary to give them effect; but whenever it becomes necessary t© inquire into the priority of ,aets done on the same day, for the fsitherance *of*justie£ and the protection of parties, the presumption of regularity «eases so far as to allow proof to be given in contradiction of presumption.

Thus, in an action of Replevin, where the property sought to be ré¡-plpvied was not severed from the freehold at the time of the issuing the writ, the precis© time of the issuing the writ become* material, and may be proved on the trial, in defence.

•The charge of a Judge, on the trial of a canse, eircumstaneed as above stated, that the jury should disregard parts of a day, so as to sustain judicial proceedings, where the occurrence of acts wer» op different hours of the same .day, would be erroneous.

An action .of Replevin cannot be maintained to recover the -value of real estate, or of that which, when severed from the real estate, would be personal, until it is served.

In-regard to bills of exception, the general rule is, that where there is po dispute as to the facts proved, the party tailing the exceptions ,pnay state so much of the proof as he regards pertinent to his exceptions. But if there is conflicting evidence uuon the same point, ho should state the evidence at largo in his exceptions, and aver that it was all the evidence given on the point, at the trial.

Error to the lute District Court of La Payette County.

This was an action of replevin, brought by the defendants in error, against the plaintiffs in error, for taking five thousand pounds of load ore.

On the trial, it appeared in evidence, that the action was; commenced before the mineral in question was dug out of or severed from the earth, where it was imbedded, by the *215.defendants below; and that upon that question themresitb .ing Judge charged the jury that they could not divide 'the parts of a day so as to defeat the action. That .if ihe jury should find that the suit was commenced on the day ■in which the act was done, for which the suit was brought, they could not regard the evidence which was offered ito ■show that the suit was commenced before the severance of the mineral from the freehold; and that so far as that point in the case was concerned, they must find for the ■plaintiffs. That the day laid in the declaration must ’be ’the guide, &c.

To this charge, the defendants below (the plaintiffs in ■error) excepted.

Various other exceptions to the ruling of the Jfiffge were taken, which are unnecessary to be -noticed, inasmuch as the opinion of the Court does not draw them in question in its decision, so as to require them -to :be noted.

The jury found for the plaintiffs below, in accordance with the instructions of the Judge.

*‘Knowlton,*for Plaintiffs in Error.

*'Culver,*for Defendants in Error.

*By the Court.*

Hubbkoo, J.

This is an action of Re-plevin for 5000 pounds of lead ore. There are several allegations of error, of which the third is as follows*.

> “ The Court erred in charging the jury that the day 'could not be divided; and that, although this suit was commenced a few hours before the mineral; taken on the writ of replevin, was dug loose or severed from the earth, yet, if the jury were satisfied that the said mineratl was dug loose during any hoúr of the said 8th day of Febru-*216a’ry, so, as to, become personal property, so far as this point was concerned, they (the jury) must find for the plaintiffs, as this was the day laid in the plaintiffs' declaration, which must be the guide; and no fraction of a day could be inquired into for- the purpose of showing that the suit was commenced before the mineral was dug loose, upon the same day. That this was not a case in which such an inquiry could b.e made.”

The bill of exceptions, contains the following among other matters : — “ And. upon the trial of that issue, said defendants, to maintain the issue on their part, and to defeat the said plaintiffs, gave in evidence and proved that the mineral taken on the writ of replevin, in this suit,was dug loose from the earth after three o’clock, in the afternoon, of the eighth day of February last, and raised to the surface, and placed in a pile by eight o’clock in the forenoon of the ninth of the same month; from which place it was replevied about noon of the said ninth. And the said defendants further proved that the said suit was commenced in the forenoon of the said eighth day of February last.”

Clearly, no cause of action existed until the mineral was converted from real into personal property, by being severed from, the earth. And this was not done until three o’clock in the afternoon of the eighth day of February. If, therefore, the suit was commenced in thejtbre-*noon*of tjie. eighth, as, the bill of exceptions shows, the suit was brought,, in point of time, before the .cause of action arose. This, on general principles, would be a fatal error; and would be good cause, for demurrer, special or general, and for reversing judgment, on writ of error. 1 *Caine's,*69; 4 *Mass.,*263, 11,

*217It is alleged, however, that the law recognizes no fractions of a day; and the learned Judge, in the Court below, expressly charged the jury, that this was not a case ill which fractions of a day could be inquired, into. In this, I think, he erred. In general, it is true, that in computing time in respect to the service of papers, the issuing of process, the calculation of interest, the running of statutes, and many other hke matters, the fractions of a day will not be considered, And in reference to the epmmencement of suits in particular, it mqy be admitted that the precise hour or moment of issuing the process or handing it to the Sheriff, will not, in ordinary cases, be inquired into. *Prima facie,*the presumption of law is, that the several acts or steps in the course of a legal proceeding, take place in the order necessary to give them legal effect. But, whenever an inquiry into the priority of acts, on the same dajq becomes necessary in order to protect the rights of parties, the ordinary presumption must give way to the facts of the case. 4 *Wash. Cir. C. Rep.,*232; 8 *Greenleaf,*207.

This is no.t properly dividing a day, or taking notice of parts of a day. It is simply taking notice of time, and giving effect to particular acts, according to their actual occurrence. The books abound in examples of this sort. The precise times of entering judgments, recording deeds, serving attachments, levying under executions, and issuing policies of insurance, are always deemed proper subjects of inquiry when the rights of parties are affected by the priority of the acts.

My attention has been called to the case of *Badger vs. Phinney,*15 *Mass.,*346 ; as an authority showing that Courts will presume acts to have occurred at such hour *218of t'he day as may be necessary to give validity to the proceeding or to effectuate purposes intended. For the prevention of wrong, ito extreme cases, such presumptions have been indulged. A similar ruling prevailed in *Clute vs.*Clute. *3d Denio,*263. But these cases must be regarded as exceptions to the general rule-, *ex debito justitice,*and while they sufficiently establish the fact that fractions of a day, or rather points of time may be the subject of judicial notice, they show that, had justice required it, the ruling would have been different. In the present casej the writ of replevin must have been procured by an affidavit of the plaintiffs, setting forth ;his right to the mineral afterwards replevied. But, in point of fact-, the mineral was not severed from the freehold, at the time the writ issued. Aside from the practical -absurdity involved in the assumption, that the affidavit can have been properly made* thebe is nothing in the whole case presented to the Court} which should induce a'Straining of the rule of laW to give validity to the writ.

I have looked into the two other questions raised in the assignment'of errors, to wit: whether the mineral taken, •was the proper subject of replevin, and whether the interest of McCtuskin was fatal to the plaintiffs’ action; and I -find in theni no strong ground of justice, which varies my views of the point already decided, and as this point is fatal to the pla ntiRs’ suit-, I need not enter upon a discussion of those questions. It was urged in argument that the bill of exceptions was defective in not stating that it contained all the evidence on the points in controversy, or in not setting forth, in fact, all the testimony given on the trial.- The general rule in regárd to bills of exceptions is this: Where there is no dispute about the facts *219proved, the bill should state that such and such facts were proved on the trial; and that is the form of the present bill. In that respect, it is correct in form and sufficient in substance, saving the Court much trouble and time in examining the details, to arrive at the admitted conclusion. Where, however, there is a controversy as .to the weight, effect, or kdmissibility of evidence, the bill should set forth the evidence given or offered, at length; and should aver that it was all the evidence given or offered at the trial, or on the point in question.

On the whole, 1 am satisfied that there was error in the' instructions of the Court below, -and the judgment must foe reversed with costs.

Judgment reversed.