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Burrus & Williams vs. Kyle & Company.

Witness. Practice in the Superior Court. Factor's lien. Attachment. Before Judge CRAWFORD. Muscogee Superior Court. November Term, 1875.

Reported in the decision.

LITTLE & CRAWFORD, by brief, for plaintiffs in error.
PEABODY & BRANNON, for defendants.

WARNER, Chief Justice.

This was a claim case, on the trial of which the jury, under the charge of the court, found the property subject to the attachment levied thereon. The case comes before us on a bill of exceptions to the rulings of the court during the progress of the trial, and to its charge to the jury. It appears from the evidence in the record that on the 30th of September, 1874, the plaintiffs’ attachment was levied on six bales of cotton as the property of Reese, the defendant therein, which was claimed by Burrus & Williams, cotton factors and warehousemen, in the city of Columbus. It also appears from the evidence that Reese lived in the state of Alabama; that he was indebted to the claimants $600 00 or $700 00 for advances made to him to make his crop for the year 1874, they having a mortgage on his crop to secure the payment thereof. Some time previous to the day on which the attachment was levied, the claimants had requested Reese to send forward his cotton, which he promised soon to do. On the morning of the 30th of September, 1874, Reese informed the claimants that he had six bales of cotton coming through the country, which would arrive in the afternoon of that day, the same being part of his crop, and proposed to pay the same to the claimants on account of his indebtedness to them, and said that he had learned that one Murphy had threatened to levy an attachment on his wagons and teams to satisfy a demand that was unjust, if he brought them on the Georgia side of the river. It was then agreed between Reese and the claim

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Burrus & Williams vs. Kyle & Company.

ants that on the arrival of the cotton in Girard, Alabama, they should send their drays over there and he would deliver to them the six bales of cotton, which they were to sell, and put the proceedls of sale to account of his indebtedness to them for the year 1874, which indebtedness exceeded the value of the cotton. The claimants sent Tilman, with their drays, over on the Alabama side of the river, and the cotton was delivered to them, and placed on their drays and brought across the river, and when on its way to their warehouse, was levied on by virtue of the plaintiffs’ attachment. The delivery of the cotton was made in pursuance of the agreement made with Reese in the morning, that claimants were to sell it, and credit Reese with the proceeds thereof, and were to account to him by notifying him of the amount thus credited; claimants knew nothing of plaintiffs' attachment until it was levied. Reese testified that he was indebted to the claimants $600 00; the debt was contracted in June, 1874, for provisions to run his farm, and was secured by a mortgage lien on the cotton ; that be paid the claimants six bales of cotton on his indebtedness to them on the 30th of September, 1874, in Alabama, having promised to pay them with the first cotton he made; the payment was made previous to the arrival of the cotton in Georgia; that at the time the cotton was attached by the plaintiffs it belonged to the claimants, and was in their possession, he having delivered it to them in Girard, Alabama, and it was put upon their drays there, was transferred from his wagons to the claimants' drays; that he had no knowledge of the plaintiffs' attachment at that time, Tilman testified that he was in the employment of the claimants, and by their directions went over the river with the drays and received the cotton for them from Reese's wagons, and brought it on this side of the river, when it was levied on by plaintiffs' attachment. The plaintiffs in attachment having disclaimed any right to recover on the ground of any fraud in the transfer of the cotton between defendant and claimants, the court charged the jury: "If you believe from the evidence that the six bales of cotton were received by Burrus & Williams, the claimants, and were by

Burrus & Williams vs. Kyle & Company.

them to be sold, and the amount received therefor was to be credited on Reese's account when so sold, and that whilst the cotton was on its way to their warehouse, and before this was done, the attachment was levied, then the cotton would be subject, because in such a case as that they would only be the agents of Reese to sell, and when sold, then they could appropriate the proceeds to the payment of his account. But, if the value of the cotton was agreed on, and it was delivered as a payment, and nothing remained to be done, except to ascertain the weights, then the payment was a good one, and it is the property of the claimants, and not subject to the attachment, it being necessary that the price should be agreed on to make it a payment.” It appears from the bill of exceptions that on the cross-examination of Williams, the plaintiffs' witDess, the claimants counsel proposed to ask him the following question: "Was not the agreement between you and Reese that you were to take the cotton and credit it upon Reese's indebtedness to your firm ?” The claimants' counsel also proposed to ask the same witness, on his cross-examination, the following question: “Who was the owner of the cotton at the time it was levied on?” The court refused to allow the questions to be answered by the witness as propounded, but stated he would allow the counsel to ask the witness what was the agreement between the witness and Reese touching the six bales of cotton levied on, and would also allow the witness to state all the facts connected with the ownership of the cotton, whereupon the claimant excepted.

1. We find no error in the refusal of the court to allow the questions propounded to the witness to be answered, but think the discretion of the court was properly exercised under the provisions of the 3865th section of the Code, the more especially as the witness was one of the parties to the suit.

2. But in our judgment the charge of the court to the jury was error, inasmuch as it ignored the claimants' lien on the cotton or its proceeds, as factors in possession thereof. The claimants were factors and warehousemen, and Reese, the defenelant, was indebted to them for advancements made by Phillips vs. The State of Georgia. them to him as factors and warehousemen. The delivery of the cotton to Tilman, their agent, by Reese, in Girard, and the placing it on the claimants' drays, to be hauled to their warehouse, was, in contemplation of the law, a delivery to them, and they were in possession of the cotton as factors and warehousemen who had made advances to Reese to enable him to make it: Elliott v8. Cox, 48 Georgia Reports, 39; Hardeman & Spurks, vs. De Vaughn, 49 Ibid., 596; Clark & Cole vs.

Dobbins, 52 Ibid., 656. The claimants, as factors and warehousemen, had a lien on the cotton in their possession not only for the expenses incurred by them in handling it, but also for all balances due to them by Reese on general account: Code, section 2111. The evidence in the record is that the indebtedness of the defendant, Reese, to the claimants for advances made by them to him, exceeded the value of the cotton.

Let the judgment of the court below be reversed.

FRANK PHILLIPS, plaintiff in error, vs. THE STATE OF

GEORGIA, defendant in error.

The only evidence of the prisoner's connection with the burglary being that

he was seen to pass by the house some hours before the offense was committed, and that several months thereafter, goods stolen from the house on the occasion of the burglary, were found in his possession, the case made is sufficiently answered by evidence of previous good character and the testimony of an unimpeached witness that the goods were delivered to the pris. oner by another person in pledge for a sum of money, the prisoner himself having given substantially the same account of his possession and no con tradictory account.

Criminal law. Burglary. Circumstantial evidence. Before Judge HOPKINS. DeKalb Superior Court. September Term, 1875.

Reported in the opinion,

HOWELL C. GLENN, for plaintiff in error.

Phillips vs. The State of Georgia.

John T. GLENN, solicitor-general, for the State.

BLECKLEY, Judge.

Burglary was committed by some unknown person. The occupants of the house were absent, having left at about one hour before sundown, and having returned the next day about one o'clock in the afternoon. During this absence some one entered the house by removing from a nail the end of a string which secured the door, stole therefrom five quilts worth $20 00, and went away, leaving the door fastened as it was before. This was in March. In July thereafter, four of the quilts were found in the prisoner's house. The fifth had not been discovered .

up to the time of the trial. Prisoner's house was searched under a search warrant, and the quilts foundtwo in a chest and two in a trunk. He was absent at the time, but his family were there. The account he afterwards gave of his possession, and the one given to the jury in his statement at the trial, was that he received the quilts from Tom Jones, for $5 00 which he let Jones have, the arrangement being that they were to be returned if the money was refunded, but otherwise, they were to be his property. He proved by his half-brother that this account of the matter was true, and four or five witnesses testified to the prisoner's good character. There was no evidence to the contrary of this, nor was the brother either impeached or contradicted. It appeared that about twelve o'clock of the day upon which the prosecutor left his house, the prisoner passed near it, along the road; and that circumstance, with the possession of the stolen property, was all that went to show his connection with the burglary. He and the prosecutor both lived in the country, about one mile and three-quarters apart.

The circumstance that the prisoner passed along the road, by the prosecutor's house, about twelve o'clock in the day, is of little or no weight against him. The prosecutor remained at home until an hour before sundown, and up to that time no crime was committed. The house stood on the roadside,

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