D. L. Green et al. v. W. B. Malone, 2 Wilson 409

Opinion by Hurt, J. § 466. Pleading in county count on appeal from justice’s court; a plea which was held did not present new matter; case stated. Green was the landlord of Malone, and sued him for the value of. a mule and other supplies advanced to him to enable him to make a crop, and dis-trained for said supplies. In the county court, to which the case had been appealed, the jury found that the distress warrant had been unlawfully sued out, and found for plaintiff $80 debt, and for the defendant $200 damages, and judgment was rendered in favor of defendant for $120 and costs.

In justice’s court, Malone pleaded that Green warranted that a wound which was upon the mule would not injure it, and that said mule afterwards died from said wound. In the county court he amended this plea by alleging that after the mule died Green purchased a horse and put in the place of the mule, and that Green executed his note for the purchase price of this horse, which note he, Malone, paid at maturity. Green moved to strike out this amendment, because it contained matter not pleaded in the justice’s court, and set up a set-off or counterclaim. This motion was overruled.

Held: The amendment did not contain new matter, nor did it present a set-off or counterclaim. It simply pleaded the defendant’s evidence tending to prove the warranty. This transaction about the horse could have been proved under the original answer made by the defendant in justice’s court. It was only objectionable upon the ground that it pleaded defendant’s evidence. § 467. Charge of the court cannot he complained of, when..

Although the charge of the court upon the measure of damages may not have been entirely correct, still it was more liberal to the appellant than a correct charge would have been, and such being the case, appellant cannot be heard to complain of the error. November 19, 1884. § 468. Judgment on appeal to county court in distress warrant suit, held to be correct.

The verdict of the jury being that the distress warrant was unlawfully sued out, not that it was illegally and unjustly sued out, would not warrant a judgment upon the distress warrant bond. [Ante, § 57.] But the judgment in this case was not rendered against Green and the sureties upon his distress warrant bond, but was rendered against-him and the sureties upon his appeal bond, and in this there was no error. Affirmed.