Garrett v. J. E. Carlton & Sons

Citations

• 65 Miss. 188

Syllabus

<p>1. Replevin. Based on trust deed. By whom to be brought.</p> <p>An action of replevin to recover possession of property by virtue of a deed of trust the condition of which is broken, must be brought in the name of the trustee. Pollard v. Thomas, 61 Miss., 152, cited.</p> <p>2. Same. For cotton distrained for rent. Avowry. Failure to reply. Irrelevant evidence. Continuance.</p> <p>G. distrained certain cotton, as the property of one D. C. replevied the cotton and filed a declaration alleging that it was his cotton and not the cotton of D. G. filed an avowry in which he alleged that he had leased D. certain land for a year stated, that he had furnished supplies to D. during that year to make a crop on the leased premises, that this cotton was grown thereon and that the supplies were still unpaid for. There were no further pleadings. On the trial the plaintiff, C , was permitted to adduce evidence to show (1) that the landlord never advanced supplies to his tenant; (2) that, if so, he had been paid therefor; (3) that the landlord had ejected the tenant from part of the leased premises; (4) that he had permitted his stock to trespass upon the crops of the tenant, whereby a right to recoup arose. Thereupon the defendant asked for a continuance on the ground of surprise. Held, that the continuance ought to have been granted. No issue of law or fact was joined or tendered by the plaintiff, and hence the evidence offered was irrelevant and must have surprised the defendant.</p>