Manning v. Mitcherson

69 Ga. 447

• Court: Supreme Court of Georgia
• Decided: January 23, 1883
• Status: Published

Opinion

Crawford, Justice.

The questions submitted for our adjudication by this record and insisted on by counsel for the plaintiff in error, are substantially:

(i.) Whether such a property right can exist in a canary bird as to make it the subject matter of a possessory warrant.

(2,) Whether, even if this be so, such warrant will lie against the husband, to recover property in the possession, custody or control of the wife. ~

(3.) Whether the notary public, and ex-officio justice of the peace, did not commit error in his decision in this case, in giving judgment in favor of the plaintiff in the warrant, against the weight of evidence submitted on the trial.

1. The law of Georgia is, that to have property in animals, birds and fishes which are wild by nature, one must have them within his actual possession, custody or control, and this he may do by taming, domesticating, or confining them.

The answer of the ex-officio justice of the peace in this case, the same being a certiorari and no traverse thereof, must be taken as true, and it says, that according to the testimony of all the witnesses the bird in controversy was shown to have been tamed. It was also testified that it had been in the possession of the plaintiff in the warrant about two years ; that it knew its name, and when called by its owner, would answer the call; that it had left its cage on one occasion, and after having been gone a day or two returned; that on the 27th day of December, before, the preceding new year’s day, it was missing from its cage, and on the latter day it was received and taken possession of by the defendant, who had kept it in confinement ever since.

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 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 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 expected ; or that the wild animals of a menagerie, should they escape from their owner’s immediate possession, would belong to the first person who should subject them to his dominion. .

2. Upon the second question presented for ourconhia'eration, we hold, that a possessory warrant will lie against any one who receives or takes possession of a personal chattel under a pretended claim, and without lawful warrant or authority. To apply this principle to the facts of this case, as they are set out in the answer of the justice, we must say that, though the wife may possibly have had the personal care of the bird in question, yet^ is,clear that it was in the power, custody and conirol^of •fcbe, husband, and was undoubtedly surrendéfedff@-t<|íé officer by his authority and direction. So that, really no question can be legally made on the point here raised,^áfr^me possession of the wife was but the possession of tHphusband.

3. That the justice gave judgment in favor óí-the plaintiff in the warrant against the weight of evidence, we do not admit. The testimony for the plain£i$-»was positive and convincing, and the testimony of Nobil GjfgniMi-at, Esq.,, given in his place as an attorney, withotpidbeing sworn, shows that the refusal to.return the bird'^as stated to him by the defendant himself, was owing more to the offensive manner in which it was demanded, thi-m to any claim of right which he set up bv»qwja^-lhijf or possession. This statement was not denied qr controverted by the defendant, though he was a witndss in thl^c^sp.-- The weight of the testimony appears to be deafly with the plaintiff. Under the law and the testimony, there was no error in dismissing the certiorari.

Judgment affirmed.