
    *Charles T. Farrar, plaintiff in error, vs. C. S. & S. Burt, defendants in error.
    (Atlanta,
    January Term, 1873.)
    New Trial. — The weight of the evidence being in support of the verdict, and no error of law having been committed, it was error in the Court to order a new trial. (R.)
    New trial. Before Judge McCuTchen. Whitfield Superior Court. July Adjourned Term, 1872.
    Charles T. Farrar foreclosed a laborer’s lien aguinst Charles E. Marshall, for the sum of $75 00. The execution issuing therefrom was levied upon a shingle mill and fixtures, as the property of the defendant. A claim was introduced by C. S. & S. Burt. The case was carried by appeal from the Justice’s Court of the six hundred and twenty-seventh district to the Superior Court.
    The facts of the case were as follows: The defendant in execution was indebted to the plaintiff in the amount of the execution for labor performed as a sawyer. He was also indebted to the claimants in the sum of $100 00 prior to the levy of the execution. On February 12th, 1872, he wrote to their attorney, offering to deliver them the property levied on in full of the debt, or to retain the property, allowing the title to remain in them, as security for their debt. On February 25th, 1872, the attorney went to the mill to take possession of the property, but simultaneously with his arrival Marshall left. He did not remove the machine and the fixtures. On March 1st, 1872, he received a letter from Marshall, in which he stated there was no claim on the property, and there could be none, as his last letter transferred the title to claimants. Also, that claimants might do what they pleased with the property as he had no claim on it. Also, that he would sign any instruments that were necessary, and that they ought to date from February 12th, 1872. Sometime between the 7th and 10th of March, 1872, claimants’ agent went to the mill to ship the property, but did not succeed in getting wagons to haul it to the depot. About the 20th of the same month *he went to the mill for the same purpose, but found the machinery levied on under the execution of the plaintiff.
    The jury found the property subject. The claimants moved for a new trial upon the following grounds:
    1st. Because the verdict was contrary to the law and the evidence.
    2d. Because the Court erred in overruling the - motion of claimants to dismiss the appeal, because the affidavit of plaintiff in forma pauperis, to secure the appeal, was made before the Ordinary of the county, who was acting as his counsel.
    A new trial was ordered, and the plaintiff excepted.
    
      W. H. BrookER; D. A. Walker, for plaintiff in error.
    T. R. Jones; Johnson & McCamy, for defendants.
   Warner, Chief Justice.

The plaintiff foreclosed a laborer’s lien against the defendant, which was levied on a shingle machine as the property of the defendant, which was claimed by C. S. & S. Burt as their property. On the trial of the claim case the jury found the property subject. A motion was made for a new trial on'the several grounds stated therein, which was granted by the Court, and the plaintiff excepted. There is no evidence in the record that Brooke, the Ordinary, before whom the pauper affidavit was made to obtaih the appeal, was acting as counsel for the plaintiff at the time it was made. In our judgment, there was sufficient evidence before the jury to authorize them to find the property subject, under the charge of the Court. The weight of the evidence, we think, is in favor of the verdict, that the title to the machine was in the defendant, and had never passed out of him to the claimants when the levy was made thereon.

Let the judgment of the Court below be reversed.  