¶1At the May term, 1875, of Upson superior court, Man-get obtained a verdict and judgment against the income of the trust estate in the hands, or that may come into the hands, of A. D. Brown, trustee for Ida May Brown, for the sum of $100.00.
¶2Execution was issued thereon 16th November, 1875, and on 29th October, 1877, the sheriff of Upson levied it upon 400 pounds of seed cotton unpicked in the field of twelve acres, the trust property of defendant in fi.fa.\ also on 500 pounds of seed cotton picked off of said field, but in possession of Hightower — the renter of said field for that year, 1877 — which cotton was levied upon as the income of the trust estate of defendant in fi.fa.
¶3Hightower filed a claim to said cotton, stating in his affidavit and bond all the levy contained ; but claiming the property as not subject to th& fi.fa.
¶4At the November adjourned term, 1878, of Upson court, issue being formed, this claim case was tried.
¶5Plaintiff, put in evidence the fi. fa., the levy, and so much of claimant’s pleadings as showed the cotton the income of the trust estate.
¶6Claimant introduced the following witnesses: John Gibson, who testified : — He rented the field in which the cotton was raised for said year 1877, and sub-rented it to Hightower at what lie gave for it; that is, he gave $25.00 note for the rent and let Hightower take his place, so to speak; that he took a note on Andrews for $25.00, indorsed by Hightower for the rent, and' said note was paid before the levy.
¶7J. S. Shannon testified that defendant, Brown, let him have the rent note on Gibson of $25.00 in payment or as a credit on an account for merchandise — family supplies ; he got the note two or three days after it was given by Gibson.
¶8Hightower testified that he gave the note of $25.00 on Andrews, indorsed by himself, to Gibson for the rent of *219the field for 1877, and Andrews had paid off the mote to Gibson before the levy. That fee knew nothing of the judgment against Brown, trustee, etc. That about £509 pounds of seed cotton would make a bale, and he gathered as much as two bales of cotton off of the field that year.
¶9Plaintiff’s counsel asked witness the customary rent in kind, and the value of all the cotton raised that year, 1877, by claimant on that field. The court refused to allow this proof to be made.
¶10During the examination of this witness it was admitted that the renting was not in kind, hut for a note of $25.09 by Gibson; and sub-let to claimant for a note of $25.00.on Andrews — indorsed by him — and that the motes were settled 3>efore levy.
¶11The court held that under these facts the mote would be the income of the trust estate, and not the eottea. levied upon, and directed a verdict to be taken for the claimant, which verdict was taken and judgment entered.
¶12Plaintiff moved to set aside the verdict asad judgment;, and for a new trial: — because the veaxlict was contrary fx> law and the evidence ; and because the court erred in rejecting proof of customary rent in kind, and value of the cotton raised that year by claimant on the field of the fcrast estate.
¶13The motion was overruled and plaintiff excepted.
¶14There was no error in overruling the plaintiff’s motion for a new trial on the statement of facts contained in the record.
¶15Let the judgment of the court below be affirmed.