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User Name: Emmanuel Ortega

Date and Time: Tuesday, August 20, 2019 8:18:00 PM PDT


Job Number: 95456320

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1. Manning v. Mitcherson, 69 Ga. 447


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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.

The evidence on behalf of defendant was, in brief, as Procedural Posture


follows: Mrs. Manning had a canary bird which was Defendant, an individual in possession of a canary bird,
either this bird or so closely resembled it that they could filed exceptions to a judgment of the McIntosh Superior
not be distinguished, the resemblance extending even Court (Georgia), which affirmed a magistrate's award of
to the peculiar mode of wearing its head-feathers possession of a canary to plaintiff, the purported owner
Defendant's bird escaped in October, 1881. On the night of the canary.

Emmanuel Ortega
Page 2 of 3
69 Ga. 447, *447; 1882 Ga. LEXIS 242, **3

Overview a pretended claim, and without lawful warrant or


Plaintiff sued out a possessory warrant against authority.
defendant to recover possession of a canary bird. Upon
an award of possession to plaintiff, defendant Syllabus
questioned whether a property right could exist in a
canary as to make it the subject matter of a possessory
warrant. Defendant contended that if so, the warrant
To acquire property in animals, birds and fishes which
would lie against plaintiff's husband to recover property
are wild by nature, one must have them in his actual
in the possession, custody, or control of his wife.
possession, custody and control, and this he may do by
Defendant claimed that the judgment was against the
training, domesticating or confining them.
weight of evidence submitted on trial. The court
confirmed the magistrate's finding that the canary was (a.) A woman had a canary bird which she had tamed,
tame. The court held that there was sufficient evidence and of which she had had possession for about two
of plaintiff's possession and dominion over the bird to years. It knew its name, and when called by its owner
create a property right in plaintiff. The court held that, would answer the call. On one occasion it had left its
although plaintiff might possibly have had the personal cage, and after having been gone for a day or two, had
care of the bird in question, it was clear that it was in the returned.
power, custody, and control of her husband and was
undoubtedly surrendered to the officer by his authority Held, that such facts gave a right [**4] of property in the
and direction. The court ruled that the possession of bird, and upon its having disappeared without the
plaintiff as wife was the possession of her husband. The knowledge or consent of the owner, and having been
court held that the weight of the testimony appeared to received and taken possession of by another who kept it
be clearly with plaintiff. in confinement, the owner could recover it by
possessory warrant.
Outcome
The court affirmed the superior court's judgment. A possessory warrant will lie against any one who
receives or takes possession of a personal chattel under
LexisNexis® Headnotes a pretended claim and without lawful warrant or
authority.

(a.) It appearing in this case that the bird was in the


power, custody and control of the husband and was
surrendered by his authority and direction to the officer
upon the issuing of a possessory warrant, there was
Contracts Law > Personal Property > Rights of
sufficient evidence on that point to support the warrant
Possessors
against the husband, although his wife may have had
HN1[ ] Rights of Possessors the personal care of the bird.

The judgment of the justice awarding possession to the


The law of Georgia is, that to have property in animals,
plaintiff in this case was not against the weight of the
birds and fishes which are wild by nature, one must
evidence; and the judgment dismissing the certiorari
have them within his actual possession, custody or
was right.
control, and this he may do by taming, domesticating, or
confining them. January 23, 1883.

Counsel: W. A. WAY; P. W. MELDRIM, by W. G.


Contracts Law > Personal Property > Rights of CHARLTON, for plaintiff in error.
Possessors W. R. GIGNILLIAT; LESTER & RAVENEL, for
defendant.
HN2[ ] Rights of Possessors
Judges: Crawford, Justice.
A possessory warrant will lie against any one who
receives or takes possession of a personal chattel under Opinion by: CRAWFORD

Emmanuel Ortega
Page 3 of 3
69 Ga. 447, *447; 1882 Ga. LEXIS 242, **4

Opinion attendant monkey, if it should slip its collar, and go at


will out of his immediate possession and control, and be
captured by another person, that he would be the true
owner and the organist lose all claim to it, is hardly to be
[*449] CRAWFORD, Justice.
expected; or that the [**7] wild animals of a menagerie,
The questions [**5] submitted for our adjudication by should they escape from their owner's immediate
this [*450] record and insisted on by counsel for the possession, would belong to the first person who should
plaintiff in error, are substanially: subject them to his dominion.

(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

Under this evidence, there does not seem to be any


question of sufficient possession and dominion over this
bird, to create a property right in the plaintiff. To say that
if one has a canary bird, mocking bird, parrot, or any
other bird so kept and it should accidentally escape
[*451] from its cage to the street, or to a neighboring
house, that the first person who caught it would be its
owner, is wholly at variance with our views of right and
justice. To hold that the traveling organist with his

Emmanuel Ortega

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