57 So. 265 | Ala. Ct. App. | 1911
The defendant pleaded by way of set-off that at the time of the bringing of the suit “plaintiff was indebted to the defendant in the just and true sum of, to wit, $75, for corn sold and delivered to him, and for the further sum of $38.25 for other corn grown by the defendant on the lands of plaintiff, which plaintiff wrongfully took from defendant and destroyed, or permitted to be destroyed.”
The defendant was a share cropper on the plaintiff’s place in the year 1909. As to the first-mentioned item of set-off, the evidence was to the effect that the defendant gathered eight loads of corn, and put two of the
The other subject of a claim of set-off was the corn which was in the field ungathered at the time the attachment was sued out. . It was merely pointed out to the constable, who arranged with the plaintiff to gather it. The constable did not assume such dominion over, that property as to constitute a levy of the attachment upon it.—Hamilton v. Maxwell, 119 Ala. 23, 24 South. 769; Abrams v. Johnson, 65 Ala. 465. Under the part of the oral charge of the court to which the plaintiff excepted, the jury were authorized to allow the defendant a credit for the corn in the field if the constable, who had not made a levy upon it, arranged with the plaintiff to
Reversed and remanded,