69 Ga. 447 | Ga. | 1883
The questions submitted for our adjudication by this
(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.
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
Judgment affirmed.