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Wilkin vs. Boykin.

PETER C. WILKIN, plaintiff in error, vs. GILFORD BOYKIN,

defendant in error.

Although an action be brought in the statutory form for personalty which is

alleged to be in possession of the defendant, yet, if the proof show a conversion by such defendant prior to the commencement of suit, a non-suit should not be ordered.

Trover. Pleadings. Before Judge KIDD00. Miller Superior Court. October Term, 1875.

Reported in the decision.

I. A. Bush, by JACKSON & LUMPKIN, for plaintiff in error.

A. HOOD; HOYLE & SIMMONS, for defendant.

WARNER, Chief Justice.

This was an action brought by the plaintiff against the defendant in the statutory form, to recover the possession of a bale of cotton of the alleged value of $60 00. The defendant filed a plea of the general issue of not guilty, and that the defendant was not in possession of said bale of cotton at the time of the commencement of the plaintiff's action. It appears from the evidence in the record that, in the fall of 1874 the defendant sued out a possessory warrant against the plaintiff for the bale of cotton in dispute, and on the trial thereof before the justice, the possession of the cotton was awarded to the defendant in this suit, on his giving bond and security for its forthcoming, as provided by the statute in such cases. The plaintiff proved at the trial that he bought the bale of cotton from Holt in the fall of 1874, and paid therefor $41 75, and that it was worth that amount; that he bought it in his usual trade as a cotton buyer. Holt testified that he sold the bale of cotton to the plaintiff, and that it was the joint property of himself and defendant; that it was sold by him, by the direction of defendant, who said that there were so many fi. fas. against him that he was afraid to sell it,

Wilkin vs. Boykin.

as it might be levied on. It was also proven that after the defendant got possession of the bale of cotton under the possessory warrant, that he said he was going to let Cothran have it, and rolled it over to Cothrau's store, and it afterwards disappeared. The plaintiff bere closed his evidence, and the defendant made a motion for a non-suit on the ground that the plaintiff had not shown that the defendant was in possession of the bale of cotton sued for at the time of the commencement of the plaintiff's action, which motion the court sustained and non-suited the plaintiff's case, whereupon the plaintiff excepted.

This form of action, as prescribed by the 3390th section of the Code, for the recovery of personal property, was intended to simplify the pleadings in that class of cases, and to allow such evidence to be introduced under it as would have entitled the plaintiff to recover in an action of trover, inasmuch as the verdicts and judgments in the suits brought under that form may be the same as in actions of trover. It would have been competent, therefore, for the plaintiff to prove that the defendant liac possession of the cotton before the commencement of the action and hard converted the same to his own use, the more especially as in this case the cotton was turned over to the possession of the defendant under the possessory warrant, to abide the result of such suit as the plaintiff might institute therefor. The evidence shows that the defendant had possession of the cotton, and had converted it before the commencement of the action, and the plaintiff was entitled to recover the proven value thereof, although the defendant may not have had the actual possession of it at the time of the commencement of the action. In our judgment, the court erved in non-suiting the plaintiff's case on the statement of facts disclosed in the record.

Let the judgment of the court below be reversed.

Wagner vs. Robinson.

ROBERT WAGNER, guardian, plaintiff in error, vs. David P.

ROBINSON, defendant in error.

1. In a suit to charge a wife's estate for services, where, at the trial, the hus.

band is dead and the wife insane, the plaintiff is an incompetent witness to prove that the services were rendered with their knowledge, consent and approbation, or to prove a contract with the husband in respect to the ser

vices, 2. A charge not applicable to the facts, in view of the main issue, should not

be given. 3. Nor should a charge be given without, at least, prima facie evidence on

which to base it. 4. The law of trusts and trust estates ought not to be given to the jury unless

there is some evidence of a trust; but if given, whether correctly or not, a

new trial will not be granted if the verdict is clearly right, 5. A married woman's property is not liable for the wages of an overseer

hired by her husband to superintend her plantations, where there is no evidence that the credit was not given to the husband personally, or that he was not farming the plantations on his own account, or that he acted as his wife's trustee, or that she received the crops, or was otherwise benefited by the services rendered.

Witness. Charge of court. Trusts. Husband and wife. Before Judge PATE. Laurens Superior Court. October Term, 1874.

Reported in the opinion.

HOWELL & DENMARK, by Z. D. HARRISON, for plaintiff in error.

No appearance for defendant.


An overseer sued for wages. The action was brought first against Vigal, as for a debt owing by him, individually. The declaration was afterwards amended, so as to make him defendant as trustee for his wife; and the effort of the plaintiff, on the trial, was to establish a contract with him as trustee, and recover against the trust estate. Pending the suit, Vigal died; and his wife being a lunatic, Wayne, as her guardian, was made a party in bis stead.

Wagner vs. Robinson.

It appeared in evidence that the plaintiff was hired by Vigal and served as overseer on plantations belonging to Mrs. Vigal. Whether the property was held in trust, and if so, whether Vigal or some other person was trustee, was not shown. It did not appear that Mrs. Vigal had anything to do with the plaintiff, or his services, or that she received the crops made on her plantations, or took the benefit of the plaintiff's services in any manner whatever. There was no evidence that either the plaintiff or Vigal acted for the benefit of her or her estate. All that connected her with the matter, was that she was owner of the plantations and the wife of Vigal.

1. The plaintiff proved by several witnesses the value of his services, and that Vigal said they were satisfactory. He offered himself as a witness to prove the contract with Vigal; and upon being rejected by the court on the ground that Vigal was dead and Mrs. Vigal insane, he again offered bimself to prove the value of his services, and that they were rendered with the knowledge, consent and approbation of both Vigal and Mrs. Vigal. He was again rejected for the same reason. It is possible that he was competent to testify as to the value of his services; but if so, it was a harmless error to rule out that part of his proposed evidence. The value was already proven by several other witnesses introduced by himself, and there was no evidence from the other side in reply. The point of value was not where the case pressed. If the plaintiff could have recovered at all, he would have recovered enougli. Under the Cole he was certainly incompetent to prove a contract with Vigal, who was dead. We think he was equally incompetent to prove knowledge, consent and approbation on the part of Vigal and wife in respect to the services rendered. They could not be heard in answer to him on these matters any more than on the express contract, one being dead and the other insane. Knowledge, consent and approbation could be material only as elements of implied contract. Proof of what was said and done by way of express agreement, might as well be admitted, as proof of mental

Wagner vs. Robinson.

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states which the witness could not have known, except by inferring them from what was said and done, or from other less decisive indications.

2. The plaintiff requested the court to charge the jury that when services are performed at another's instance, without an agreement as to price, the law implies that they are to be paid for at what they are reasonably worth. Ordinarily, this charge would have been proper, but in the present case it needed amendment in one important particular. Paid for by whom ? It is not stated, and there lay the whole controversy. The guardian of Mrs. Vigal defended this suit on the one ground that his ward's property was not liable for the plaintiff's wages. This was the plea and the sole defense. Had the request to charge stated that the law implies the services are to be paid for by the employer at what they are reasonably worth, it would have been unobjectionable. But without that amplification it lacked adjustment to the exigencies of the case, and the refusal to give it to the jury was not error.

3. Another request to charge was made and refused, and we think properly refused, for the reason, at least, that there was no evidence on which to base it. It was, that if the plaintiff performed services as overseer for the benefit of Mrs. Vigal, he was, in equity, entitled to payment out of her estate, and if the case was made out, recovery might be had at law. There is no evidence in the record that the services were for Mrs. Vigal's benefit.

4. The court charged that if Mrs. Vigal owned a trust estate, and Vigal was her trustee, and he, as such, contracted with the plaintiff to oversee the trust estate, and the ordinary did not approve the contract, the plaintiff was not entitled to

The court should not have made any such charge as this, there being absolutely no evidence that Mrs. Vigal owned any trust estate, or that Vigal was her trustee, or acted in that capacity in employing the plaintiff. The charge being thus erroneous for irrelevancy, it is of no consequence whether what it lays down in reference to the ordinary's approval be law or not. It may be that the act of 1866, Code,


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