¶1The circuit court did not err in refusing to dismiss the appeal from the justice’s court, for want of a proper affidavit. The transcript sent up to the circuit court by the justice recites, that “the said defendant filed the affidavit required by law.”- There appears amongst the papers copied iuto the transcript, filed here, a paper purporting to be an affidavit of one of the defendants, Trentham, with the/«raí of the justice, and his note of the filing, dated of the same day, with the appeal. The affidavit states that the appeal is “ not asked for delay, but that justice may be done.” It is not entitled of the cause, but it sufficiently appears to have been filed therein, from its date, connected with the recital by the justice in the transcript. '
¶2If the jury believed from the evidence that T. J. Lee, the tenant, rented the lands upon which the cotton was made, from Trentham, the lien of the latter for rent was superior to the right of the mortgagee, and if Trentham, or others for him, had the cotton in possession to secure the lien for rent, it could not properly be taken from them by the mortgagee, without a tender of the amount due.
¶3The statutory lien of the landlord without other authority, does not entitle him to seize and appropriate the crop without legal process. But, if he comes into possession of it without trespass, and especially with the tenant’s consent, for the purpose of securing rent, or if it be deposited with others for the like purpose, the rent must be fully tendered before it can be retaken by the tenant or his mortgagee.
¶4The case would be the same, although the lands rented were the separate property of the wife, if it appeared, that she allowed the husband to control and manage the property generally, and without anything to show that he acted only as her agent. There would be an assent on her part, implied from the marital relation, that she conceded the right on his part tó use the proceeds, and he may claim rent from tenants under him.
¶5Whether such tenatiey existed, as well as all other facts in the case, was properly left to the jury; a review of the instructions discloses no material error. The evidence was conflicting, but there was enough to support the verdict; and the jury was authorized to judge of its weight.
¶6Affirmed.