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Emmanuel Ortega
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Manning v. Mitcherson
Supreme Court of Georgia
September, 1882, Decided
No Number in Original
Reporter
69 Ga. 447 *; 1882 Ga. LEXIS 242 **
of January 1, 1882, one Brown returned to her the bird
MANNING vs. MITCHERSON.
in dispute, it having entered his kitchen and been caught
by one of his servants. The witnesses on behalf of
Prior History: [**1] Possessory Warrant. Actions.
defendant, all testified that to the best of their
Birds. Property. Husband and Wife. Before Judge
knowledge and belief this was her bird. It remained in
TOMPKINS. McIntosh Superior Court. May Term, 1882.
her possession until taken by the constable, and was
Mrs. Catherine Mitcherson sued out a possessory not in the possession, custody or control of her
warrant against Patrick Manning to recover possession husband.
of a canary bird. On the trial before the justice, the
W. R. Gignilliat, Esq., counsel for [**3] plaintiff, by
evidence on behalf of the plaintiff was, in brief, as
follows: The bird was obtained by the plaintiff from the consent, made the following statement in his place: "Mr.
captain of a vessel, and had been in her possession for Manning told me that Mrs. Mitcherson had demanded
about two years. On the 27th of December, 1881, it was the bird in such an insolent manner as to hurt his
feelings very deeply, that if she had asked for the bird in
discovered that the bird was missing, and the door of
a decent way, she could have had 'her' bird, or 'the' bird,
the cage in which it was kept was found open. It had
I am not certain which, without any trouble, but that she
escaped once before, and after remaining away for a
had treated him in the matter as though he was not
day or two had returned. It was called "Sweet," and
worthy to walk on the same ground with her folks.
would answer to its name. It had a peculiar crest on its
head, which was divided in the middle by Mrs.
The justice awarded possession to the plaintiff.
Mitcherson, as one would part a person's hair. On
Defendant carried the case by certiorari to the superior
January 2, 1882, plaintiff learned that the bird was in
court, where the judgment of the magistrate was
possession of Manning, and sent to him for it, but the
affirmed, and defendant excepted.
latter refused to deliver possession. The identity of
"Sweet" was very positively sworn to by the plaintiff and Disposition: Judgment affirmed.
other witnesses on her behalf. Upon the return of the
possessory warrant, the bird was not brought into [**2]
court. The justice asked for it, and defendant replied that
Core Terms
he did not know that it was necessary to bring the bird
cage, weight of the evidence, immediate possession,
up to court. The justice read § 4038 of the Code to him;
justice of the peace, custody or control, property right,
he returned with the officer to give the latter the bird; the
first person, confinement, ex-officio, possessory,
constable returned with it in his possession and testified
organist, animals, canary, tamed
that it was given to him by a servant at Manning's
house, and that when he had previously sought to
execute the warrant, Manning refused to give up the Case Summary
bird.
Emmanuel Ortega
Page 2 of 3
69 Ga. 447, *447; 1882 Ga. LEXIS 242, **3
Emmanuel Ortega
Page 3 of 3
69 Ga. 447, *447; 1882 Ga. LEXIS 242, **4
(1.) Whether such a property right can exist in a canary Upon the second question presented for our
bird as to make it the subject matter of a possessory consideration, we hold, that HN2[ ] a possessory
warrant. warrant will lie against any one who receives or takes
possession of a personal chattel under a pretended
(2.) Whether, even if this be so, such a warrant will lie claim, and without lawful warrant or authority. To apply
against the husband, to recover property in the this principle to the facts of this case, as they are set out
possession, custody or control of the wife. in the answer of the justice, we must say that, though
the wife may possibly have had the personal care of the
(3.) Whether the notary public, and ex-officio justice of bird in question, yet it is clear that it was in the power,
the peace, did not commit error in his decision in this custody and control of the husband, and was
case, in giving judgment in favor of the plaintiff in the undoubtedly surrendered to the officer by his authority
warrant, against the weight of evidence submitted on and direction. So that, really no question can be legally
the trial. made on the point here raised, as the possession of the
wife was but the possession of the husband.
HN1[ ] The law of Georgia is, that to have property in
animals, birds and fishes which are wild by nature, one That the justice gave judgment in favor of the plaintiff in
must have them within his actual possession, custody or the warrant against the weight of evidence, we do not
control, and this he may do by taming, domesticating, or admit. The testimony for the plaintiff was positive and
confining them. convincing, and the testimony of Robt. Gignilliat, Esq.,
given in his place as an attorney, without being sworn,
The answer of the ex-officio justice of the peace in this shows that the [**8] refusal to return the bird, as stated
case, the same being a certiorari and no traverse to him by the defendant himself, was owing more to the
thereof, must be taken as true, and it says, that offensive manner in which it was demanded, than to any
according to the testimony of all the witnesses the bird claim of right which he set up by ownership or
in controversy was shown to have been tamed. It was possession. This statement was not denied or
also testified that it had been in the possession [**6] of controverted by the defendant, though he was a witness
the plaintiff in the warrant about two years; that it knew in the case. The weight of the testimony appears to be
its name, and when called by its owner, would answer clearly with the plaintiff. [*452] Under the law and the
the call; that it had left its cage on one occasion, and testimony, there was no error in dismissing the
after having been gone a day or two returned; that on certiorari.
the 27th day of December, before the preceding new
year's day, it was missing from its cage, and on the Judgment affirmed.
latter day it was received and taken possession of by
the defendant, who had kept it in confinement ever
since. End of Document
Emmanuel Ortega