
    Harvey v. Edwards.
    February 26, 1890.
    Claim. Verdict. New trial. Before Judge Fort. Schley superior court. April term, 1889.
    A distress warrant in favor of M. R. Edwards against Willis Ellison, for the rent of certain land for 1885, was levied, December 14, 1885, upon certain personalty, including two cows and calves, one steer and one heifer, marked with “underbit and overbit” in each ear. Becky Harvey interposed her claim January 9, 1886. Upon the trial, the bailiff who made the levy testified that he found the cows in the possession of Ellison, brother-in-law of claimant, who lived with him; also that he made a levy of a mortgage fi. fa. on November 25, 1885, and that Becky Harvey interposed a claim, and he left the property on the place, which was formerly owned by Owens. The plaintiff testified that the cattle levied on belonged to Ellison, who had owned them ever since 1881, when plaintiff bought the place from Owens, the cattle then being four or five head, and havinereased since to about six head. Claimant and Ellison both lived on the place when plaintiff bought it. She told plaintiff" to raise the cattle for Ellison, or if he did not help Ellison McElmurray would sell his cattle. Plaintiff had never heard of claimant putting in any claim to the cattle until since this levy; does not know where Ellison got them; never told Owens that he would admit that the cattle were claimant’s. The tax books showed that claimant gave m no property; but that Ellison, at and previous to the time of the levy, gave in $65 worth of stock. On May 20, 1881, to secure the payment of a note, Ellison gave to McElmurray a mortgage (which appeared in evidence) covering his crops, certain hogs, and three heads of cows and calves, marked with an “underbit and overbit” in each ear.
   Simmons, J.

The jury having found for the plaintiff in this case, and there being some evidence to support the verdict, and the trial judge being satisfied therewith, we will not interfere with his dis-cretion in refusing to grant a new trial. Judgment affirmed.

The testimony of the claimant and of two other witnesses tended to show that about fourteen years ago, she bought from Hobbs a cow which was one of the cattle under levy, and the others were raised from her; that the cattle levied on belonged to claimant, and defendant had never had any control of them nor exercised any acts of ownership over them; that they staid in Owens’ pasture up to the time he sold the place to Edwards in 1881, and in the possession of claimant, who always claimed them; and that Edwards told Owens that he would admit that they were claimant’s cows, and that he had no doubt they were hers.

The jury found the property subject, and the claimant moved for a new trial on the general grounds. The overruling of the motion was excepted to.

W. H. McCrory, for plaintiff in error.

J. K.. Williams and E. E. Hinton, contra.  