Taylor & Company vs. Clark et al.

was claimed by different claimants. By consent of parties, the several cases were consolidated and tried together. The crop liens were created by the defendant as the trustee of Mrs. Darley, a married woman, under a marriage settlement deed executed in 1857. On the trial of the case, the claimants objected to the introduction of the crop lien fi. fas. in evidence on the ground that the trustee had no authority to create said liens, which objection the court sustained and dismissed the levies, whereupon the plaintiffs excepted.

It appears from the evidence in the record that the supplies furnished by the plaintiffs, for which the liens were created, were furnished for the benefit of the trust estate, so as to enable the cestui que trusts to make a crop thereon for the year 1874; and the question is, whether a trustee is authorized by law to create a lien upon the property of the trust estate, or the crops to be made thereon, for that purpose? The 2335th section of the Code declares that "trustees are not authorized to create any lien upon the trust estate except such as are given by law." We are not aware of any law in this state that gives to trustees the authority to create a lien upon the property of a trust estate. It was insisted on the argument that, under the 1978th section of the Code, that liens of the description mentioned in the record might be created upon such terms as may be agreed on by the parties would include trustees under the term "parties." The term "parties," as mentioned in that section of the Code, must be understood to mean such parties only as are authorized by law to make such agreements, and not such parties as are expressly forbidden by law to make them. If the supplies were furnished by the plaintiffs for the use and benefit of the trust estate, that estate is liable therefor, and their remedy to enforce the payment of their claims against the trust property is provided for by the 3377th to the 3382d sections of the Code, inclusive. Whilst it does not affirmatively appear from the record before us that any special injury would result to the trust estate by enforcing the collection of the crop liens created by the trustee on the property thereof, still we are not prepared to say that the statute which pro

Renew vs. Redding.

hibits trustees from creating any lien upon the property of the trust estate, except such as are given by law, is not a wise and salutary statute. But, as a court, we can have nothing to do with the wisdom or expediency of the statute; our plain duty is to enforce it, and at some other time, and on some other occasion, the efficacy and wisdom of its provisions will doubtless be made manifest. We find no error in the ruling of the court on the statement of facts disclosed in the record.

Let the judgment of the court below be affirmed.

MOSES G. RENEW, plaintiff in error, vs. ROBERT J. REDDING assignee, defendant in error.

1. Where the affidavit upon which a distress warrant was based, alleged that the defendant was indebted to the plaintiff $1,232 50 for rent, and the evidence was to the effect that the defendant contracted to pay a certain number of bales of cotton, which was shown to be worth the sum aforesaid, there was not such a variance as to require a non-suit,

2. The discretion of the court below in imposing the payment of costs on a party seeking to amend his pleadings, will not be controlled unless abused. 3. Where rent is contracted to be paid in cotton, a distress warrant lies therefor.

4. Notwithstanding errors in the charge of the court, as the verdict did substantial justice, a new trial will not be ordered.

Landlord and tenant.

Pleadings.

Evidence.

A mendNew trial.

ment. Costs. Practice in the Superior Court.

Before Judge CLARK. Schley Superior Court. October Adjourned Term, 1874.

Reported in the decision.

JOHN R. WORRILL; W. A. HAWKINS, for plaintiff in error.

ALLEN FORT; HUDSON & WALL, for defendant.

Renew vs. Redding.

WARNER, Chief Justice.

This was a distress warrant for rent sued out by the plaintiff against the defendant, in which the plaintiff alleged that the defendant was indebted to him the sum of $1,232 50, besides interest, for rent, which was due and unpaid. The defendant filed his counter-affidavit under the statute, and the issue thus formed came on for trial, when the jury found a verdict in favor of the plaintiff for the sum of $827 50. The defendant made a motion for a new trial on the several grounds therein set forth, which was overruled by the court, and the defendant excepted.

It appears from the evidence in the record that on the 12th of December, 1871, the parties entered into a written contract, in which it was stipulated that they were to farm together for the year 1872 on the plantation of the plaintiff, according to the terms and stipulations as therein set forth. It also appears from the evidence that in February or March, 1872, the parties made a new verbal contract in relation to the rent to be paid under the first written contract, whereby the defendant agreed to pay the plaintiff fourteen and one-half bales of cotton for the rent of the land; that the fourteen and onehalf bales of cotton, when the distress warrant was taken out in October, 1872, was worth the amount claimed in the distress warrant, which was $1,232 50.

1. One of the errors complained of is, that the court refused to non-suit the plaintiff on motion of defendant, on the ground of variance between the evidence of the plaintiff as a witness, and the allegations in the distress warrant. The allegation in the distress warrant is, that the defendant was indebted to the plaintiff in the sum of $1,232 50, besides interest, for rent. The evidence was that under the new contract made in February or March, the defendant was to pay the plaintiff fourteen and a half bales of cotton for the rent of the land, and that the same was worth the amount distrained for, and the amount distrained for was $1,232 50. There was no

Renew vs. Redding.

error in overruling the motion for a non-suit on the ground of variance.

Whether the conrt erred in sustaining the plaintiff's demurrer to the defendant's pleas of recoupment or not, we cannot determine, inasmuch as the pleas are not in the record for our inspection.

2. In relation to the error complained of in refusing to allow the defendant to put in a second amendment to his pleas unless he should pay the costs, the judge certifies that considable delay had occurred during the trial by the defendant's filing a long amendment to his plea called a plea of recoupment, and during the further progress of the trial of the case, another amendment was proposed; the court required the payment of costs as to the second proposed amendment, but not as to the first amendment which had been allowed. This was properly a matter within the discretion of the court, according to the provisions of the 3482d section of the Code, and we will not control the exercise of it in this case, nor in any other, unless there has been a gross and flagrant abuse of that discretion.

3. Whether the plaintiff would have been entitled to his remedy by distress warrant or not, under the original written contract, he was clearly entitled to it under the new contract as proved by the evidence in the record, if the jury believed the plaintiff's evidence. It is true, the evidence was conflicting in relation to that point in the case, but that was a question for the jury.

4. The verdict is $405 00 less than the plaintiff's demand; that is to say, the jury reduced the plaintiff's claim that much, though it is somewhat difficult to see upon what grounds, as the defendant's evidence fails to show what amount he was damaged by the plaintiff's failure to furnish cotton seed, or otherwise; but that is a matter about which the defendant has no cause of complaint. Although there may have been some errors in the charge of the court, still, we think that the verdict did substantial justice between the parties, at least the defendant has no just cause of complaint under the evidence.

VOL. LVI. 21.

Bailey et al. vs. The State of Georgia.

in the record, and as the court below was satisfied with the verdict we will not interfere to disturb it.

Let the judgment of the court below be affirmed.

HENRY BAILEY et al., plaintiffs in error, vs. THE STATE OF GEORGIA, defendant in error.

When six persons are indicted together for burglary, four as principals in the first, and two as principals in the second degree, and all the goods stolen on the occasion of the burglary have been found in the possession of one of the four, and the only witnesses who connect the other three (those on trial) with the offense, are the two principals in the second degree, who avow their own guilt, and who, though agreeing on all the proximate facts, contradict each other in respect to several remote circumstances, and two of the accused on trial prove an alibi by one witness, and the third, besides being shown to be a person of good character, establishes an alibi by four witnesses, a verdict of guilty is contrary to evidence, and a new trial should be granted.

Criminal law. Burglary. Accomplice. New trial. Before Judge UNDERWOOD. Floyd Superior Court. July Adjourned Term, 1875.

Reported in the opinion.

DABNEY & FOUCHE, for plaintiffs in error.

C. F. CLEMENTS, solicitor general, for the state.

BLECKLEY, Judge.

Three of six defendants in the same indictment were tried for burglary. The witnesses to connect them with the offense were two of those not on trial, which two were charged as principals in the second degree. They testified positively to the participation of the others in the burglary; and while they were fully corroborated by other witnesses as to the fact that a burglary was committed, and as to some of the circumstances that attended it, there was no corroboration of their