Manning v. Mitcherson

• Decision Date: 30 September 1882
• Parties: Manning. vs. Mitcherson.
• Court: Georgia Supreme Court

69 Ga. 447

Manning. vs. Mitcherson.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1882.

Possessory Warrant. Actions. Birds. Property. Husband and "Wife. Before Judge Tompkins. Mcintosh Superior Court. May Term, 1882.

Mrs. Catherine Mitcherson sued out a possessory warrant against Patrick Manning to recover possession of a canary bird. On the trial before the justice, the evidence on behalf of the plaintiff was, in brief, as follows: The bird was obtained by the plaintiff from the captain of a vessel, and had been in her possession for about two years. On the 27th of December, 1881, it was discovered that the bird was missing, and the door of the cage in which it was kept was found open. It had escaped once before, and after remaining away for a day or two had returned. It was called "Sweet, " and would answer to its name. It had a peculiar crest on its head, which was divided in the middle by Mrs. Mitcherson, as one would part a person's hair. On January 2, 1882, plaintiff learned that the bird was in possession of Manning, and sent to him for it, but the latter refused to deliver possession. The identity of "Sweet' was very positively sworn to by the plaintiff and other witnesses on her behalf. Upon the return of the possessory warrant, the bird was not brought into court. The justice asked for it, and defendant replied that he did not know that it was necessary to bring the bird up to court. The justice read §4038 of the Code to him; he returned with the officer to give the latter the bird; the constable returned with it in his possession and testified that it was given to him by a servant at Man-ning\'s house, and that when he had previously sought to execute the warrant, Manning refused to give up the bird.

The evidence on behalf of defendant was, in brief, as follows, Mrs. Manning had a canary bird which was either this bird or so closely resembled it that they could not be distinguished, the resemblance extending even to the peculiar mode of wearing its head-feathers Defendant's bird escaped in October, 1881. On the night of January 1, 1882, one Brown returned to her the bird in dispute, it having entered his kitchen and been caught by one of his servants. The witnesses on behalf of defendant, all testified that to the best of their knowledge and belief this was her bird. It remained in her possession until taken by the constable, and was not in the possession, custody or control of her husband.

W. R. Gignilliat, Esq., counsel for plaintiff, by consent, made the following statement in his place: "Mr. Manning told me that Mrs. Mitcherson had demanded the bird in such an insolent manner as to hurt his feelings very deeply, that if she had asked for the bird in a decent way, she could have had ' her' bird, or ' the' bird, I am not certain which, without any trouble, but that she had treated him in the matter as though he was not worthy to walk on the same ground with her folks.

The justice awarded possession to the plaintiff. Defendant carried the case by certiorari to the superior court, where the judgment of the magistrate was affirmed, and defendant excepted.

W. A. Way; P. W. Meldrim, by W. G. Charlton, for plaintiff in error.

W. R. Gignilliat; Lester & Ravenel, for defendant.

Crawford, Justice.

The questions submitted for our adjudication by this

record and insisted on by counsel for the plaintiff in error, are substania11y:

(1.) Whether such a property right can exist in a canary bird as to make it the subject matter of a possessory warrant

(2.) Whether,...