The clarion. [volume] (Jackson, Miss.) 1883-1888, 1886-06-02
E. T. CLARKE,
G. w. PARKER. J

Appeal from the Circuit Court of Yszoo
county. Hon. I. J. Wharton, Judge.
f. T. Clarke sued out writ of attach
ment against one B. I. MCGEE, and
levied on forty bales Of cotton, G. w.
Parker interp0sod the claimants issue as
to twenty bales of this cotton. On the
trial the jury found that the attach
ment was Tightfully sued out. On issue
Joined on the claim of Parker, the jury
rendered the following verdict: 1--WE,
the jury, find for the claimant, Parker,
for his claim of rent, and fix the same
at 4745 pounds of lint cotton, and for
the sum of $27.9 on his account for adj
vances." Whereupon the court ordered
that Parker have sufficient from the
twenty bales of cotton to satisfy the
above claim as found by the jury, and
that the remainder be paid over to
Clarke, and that the costs of the suit be
charged against the plaintiff, Clarke.
The plaintiff excepted to this order. The
jury in their verdict failed to assess the
value of the cotton. The sheriff when
he made his return, estimated the value
of the cotton to be S32 per bale, hut
made no estimate of its value per pound.
No writ of inquiry was asked for in the
court below. The plaintiff appealed.
COOPER, c. j., delivered the opinion of
the court,
Held-That the plaintiff in execution
having maintained his right to subject
to his execution a part of the property
claimed by the appellee, was entitled to
a Judgment for costs under sec. 1778,
Code of 1880. By sec. 1777, the burden
of proof is put upon him, and he is
declared entitled to the same rights as
in other actions, one of which is to have
ar award of costs upon sustaining the
issue az against his adversary occupying
the position of defendant. The power
conferred upon trial judges to order the
payment of costs by either party arises
only where no provision has been made
by law expressly or by fair impIica-
ton" The verdict of the jury win not
be disturbed. But the jury having
failed to assess the value of the cotton,
and the sheriffs returns not having indi-
Gated the value per pound Of the cotton,
a writ of inquiry should have been pros
ecuted to determine how many pounds
were in bale and its value. This being
done there will be no difficulty in award
ing a proper judgment on the verdict.
The Judgment entered is reversed, but
the verdict of the jury is not disturbed /;
the cause is remsnded for further pro-
ceedings.
Bowman & Bowman and j. c. Prewett,
for the appellant.
w. S. Epperson, for the appellee.
G. W. BooNE,
VS..
A. d. McJUNKIN.
Appeal from the Circuit Court of
Chickasaw county. Hon. J. w. Blu
chanan. Judge.
G.. W. Boone, the trustee in deed of
trust given by A. D. McJunkin in favor
of one G. w. Cole, took possession Of
certain personal property belonging to
McJunkin. ThereupOn McJunkin sued
out writ of replevin to recover the
property. Boone claimed the right of
possession to the property by virtue of
the above deed of trust, and that before
the SURG out of the writ of replevin he
turned the property over to his eestm que
trust. G. W. Cole, to satisfy appellee's
Indebtedness to Cole under the trust
deed. On the trial an open account of
G. w. Cole against appellee was intro
duced 10 prove this Indebtedness. Many
items on this account were objected to.
because they were sold by Cole at a
time when he had no license to carry Oh
the business of merchant The court
directed the jury TO disregard all items
sold from February TO March, 1884, the
time during which Cole WIS without
such license. The jury found for the
plaintiff in replevin, and the defendant
appealed to this court.
Pending this appeal, an act approved
March u, 1856, entitled "an act grant
ing relief from the penalties imposed.
and to render enforceable certain con-
tracts under sec. $50, Code Of 1880, .
wss passed, and appellant fled here an
affidavit and the sherifi's tax receipt to
show that G.. w. Cole had brought him.
self within the provisions Of that act,
and asked this court to reverse the case,
on the ground that the direction to the
jury of the court below to omit GER
tain items in the account of Cole was
wrong. There were other objections
urge1, which need not be stated.
COOPER, G. J., delivered the opinion Of
the court.
Held-That this court has no power to
determine q fact which may have arisen
since the rendition of judgment in the
court below; nor Is a judgment right
when rendered. subject to reversal be
cause Of any fact arising after its rendi-
ton, and which, If it had existed at the
time. would have produced a different
result 4ffrnsed.
W. r. Harper, for the appellant.
Houston & Williams for the appellee.