Erskine v. Wiggins

"Warner, Chief Justice. The plaintiff brought his action against the defendant to recover the value of a certain described forty-saw cotton gin, to which the plaintiff claimed title, in the statutory form. On the trial of the case the jury found a verdict for the plaintiff for the sum of $6'5.00 The defendant made a motion in arrest of judgment, and for a new tidal, on various grounds, both of which motions were overruled by the court, and the defendant excepted. 1. It appears from the record and bill of exceptions, that the verdict of the jury was written upon the bail affidavit taken in the case, instead of the declaration, and the court ordered the verdict to be transferred to the declaration. The motion in arrest of judgment because the court ordered the verdict to be transferred from the bail affidavit to the declaration, was properly overruled. 2. The evidence shows that the cotton gin was left with the defendant to be repaired; that plaintiff insisted he was not to pay for the repairing of the gin until he had tested its performance by a trial thereof, and refused to do so; the defendant foreclosed what he claimed to be a mechanic’s lien for the repairs done on the gin, had it levied on and, sold by a constable, by virtue of his lien fi. fa., and became the purchaser of it. The court charged the jury, amongst other things, that they had nothing to do with the foreclosure relied on by the defendant; that he got no title under that sale. This charge of the court is assigned as error. There was no error in the charge of the court in relation to this point in the case, because it is not averred in the plaintiff’s affidavit foreclosing his lien, as required by the 1991st section of the Code, that a demand had been made on Wiggins, the owner of the gin, for payment of his de mand for repairing it, and his refusal to pay. On looking through the evidence contained in the record, [189] and the rulings of the court applicable thereto, we find no error in overruling the defendant’s motion for a new trial. Let the judgment of the court below be affirmed. *