Appeal from the Circuit Court of Henry.

Tried before Hon. J. MoCaleb Wiley.

The appellee, Shackleford, sued out an attachment in the circuit court of Henry, against the appellant and one Roberts, for the year’s rent of one hundred and twenty acres of land, and gave bond, <fcc., as required by law. The affidavit states, that the defendants were to cultivate all the land, and to pay (plaintiff) appellee one-fourth of the crop raised thereon, and that if the land had all been planted and properly cultivated, appellee’s share of the crop would have been worth $600; for which amount attachment issued. It is no where shown whether the contract of renting was verbal or written. The attachment, which commanded the sheriff “ to levy on so much of the crop grown on said lands,” &c., was returned by the sheriff, with the following endorsement: “ Levied the within attachment on 8000 pounds of seed cotton, the property of the defendants. October 25th, 1867.”

The complaint filed by the plaintiff contained two counts) and claimed $600 damages for a breach of the contract in not planting all the land, and for not cultivating it as agreed on in the contract. On the trial, the defendants submitted a motion “ to dismiss the levy of the attachment because the return of the sheriff fails to show that the property levied on was of the crop grown on the rented lands.” The court overruled this motion, and defendants excepted. The defendants also demurred to the complaint — 1st, because the action was commenced by attachment for rent, &a., and the counts in the complaint claim damages for the breach of an agreement sounding in damages; 2d, because the said counts are variant, and set up a different cause of action from that set forth in plaintiff’s affidavit and attachment. The demurrer was overruled and defendants excepted. The defendant Roberts then suggested his bankruptcy, and the plaintiff, by permission of the court, then amended the complaint by striking out the name of Roberts and proceeded against Odom alone. The plaintiff then testified to the contract of renting, the same in substance as that set out in the affidavit for attachment, and that if defendant had cultivated all the land agreed on that it would have yielded at least a rental of $350. This being all the evidence, the court charged the jury, that if they believed the evidence they must find for the plaintiff, and defendants excepted. After the trial was had, and judgment entered, the sheriff moved the court for leave to amend the levy so as to make it show that “ the cotton seed levied on were pointed out by the defendants as part of the crop grown-on the rented lands.” This motion was granted, the levy amended, and defendants excepted.

The errors assigned are the various rulings of the court, and the charge to which defendant excepted.

Citation profile

Relationships

How this case has been treated — in progress