Morris v. Neville.

three years applies to the case as presented, it is conceded the suit cannot be maintained. If six years,

it is then conceded the action can be sustained, and

the defendant is liable.

This is not an action for injury to personal property, nor for detention for detention or conversion of the same, which is barred in three years by sec. 2773 of the Code. It is for damages, or for breach of the contract to ship the cotton to Mosby, Hunt & Co., and comes under sec. 2775; actions on contracts, not otherwise provided for, shall be barred within six years."

6.

His Honor held this to be the period when the bar attached, and we affirm his judgment.

I. N. MORRIS v. MRS. A. C. NEVILLE.

EMPLOYER AND EMPLOYEE. Damages. Mrs. Neville sued Morris for keeping from her service certain employees with whom she had contracted for service. Upon trial, it was not error in the trial judge to refuse to charge" that if before Morris employed the laborers, or any of them, they had voluntarily broken their contract with plaintiff, with or without cause, then they would not be under contract with her, or in her employ, and Morris, in hiring them, would not be liable to plaintiff for damages."

FROM SHELBY.

Appeal in error from the Circuit Court of Shelby county. J. O. PIERCE, J.

Morris v. Neville.

A. SUGGS for Morris.

H. M. HILL and J. E. BIGELOW for Neville.

DEADERICK, C. J., delivered the opinion of the court.

Judgment was rendered by a justice of the peace of Shelby county in favor of plaintiff in error, and defendant in error, who brought the suit, appealed to the circuit court. There verdict and judgment were in her favor, and Morris has appealed to this court.

The suit was brought by Mrs. Neville, under the act of 1875, ch. 93, to recover damages for decoying and enticing away and keeping from her service certain employees with whom she had contracted for service, etc.

The plaintiff and her daughter and other witnesses make out a case entitling her to a recovery, under the act. Section 1 declares that it shall not be lawful for any one knowingly to hire, contract with, decoy or entice away, directly or indirectly, any one, male or female, who is at the time under contract or in the employ of another.

And section 2 provides that any one violating the provisions of the first section of this act shall be liable to the party who originally had, and was entitled to, the services of said employee, by virtue of a previous contract, such damages as he may reasonably sustain by the loss of labor of said employee; and he shall be liable, whether he had or not, knowledge of the contract, if he failed to discharge the person hired after notice of such contract.

Morris v. Neville.

The defendant's testimony is in direct conflict with much of the material testimony of plaintiffs; but as the jury have passed upon this conflict of the evidence, we cannot reverse, even if we were of opinion that the weight of evidence was against the finding.

It is next insisted that the court erred in refusing to charge the jury, as requested, "that if before Morris employed these laborers, or any of them, they had voluntarily broken their contract with plaintiff, with or without cause, then they would not be under contract with her, or in her employ, and Morris, in hiring them, would not be liable to

plaintiff for damages."

The court declined to give these instructions, stating that the statute was designed to cover such a a case. The laborers had removed from the plantation of plaintiff directly to that of defendant, in the month of May, after having put in a crop of about thirty-five or forty acres of cotton and eight or ten of corn. The statute makes the hirer liable to damages, even if he has hired without knowledge of the previous contract of hire, if he fails to discharge the laborer after he has been notified that the person is under contract, or has violated his

contract.

There was, therefore, no error in the refusal of the court to give the charge requested.

The judgment of the circuit court must be affirmed. 18-VOL. 11.

Conley & Harrison v. Deere, Mansure & Co.

CONLEY & HARRISON v. DEERE, MANSURE & Co.

PLEADINGS AND PRACTICE. Replevin. Receiver. A creditor obtained a judgment in circuit court against Bryant & Newhouse, and execution was issued thereon. The goods of Bryant & Newhouse were then attached by bill in chancery court, and a receiver appointed. The officer levied the execution upon the goods, and the receiver brought an action of replevin in circuit court to recover possession. Held: That under the facts of this case, the dignity of the chancery court, within the same jurisdiction, cannot be asserted by an action of replevin in a common law court, against a party having in fact a superior right to the possession of the property.

FROM GIBSON.

Appeal in error from the Circuit Court of Gibson county. J. T. CARTHELL, J.

W. M. MCCALL for Conley & Harrison.

COOPER & BUCHANAN and WALKER for Deere, Mansure & Co.

FREEMAN, J., delivered the opinion of the court.

At the November term of the circuit court defendants recovered a judgment against Bryant & Newhouse. After the recovery of said judgment, Bryant & Newhouse sold one-third of the stock to McNeal, after which sale the style of the firm was Bryant, Newhouse & McNeal.

An execution issued on the above judgment, which was levied on goods owned by Bryant & Newhouse at the time of the rendition of the judgment, the levy being of date January 12, 1881.

Conley & Harrison v. Deere, Mansure & Co.

Before this time, however, the goods had been sold by Bryant, Newhouse & McNeal to Conley & Harrison. After this purchase several creditors had filed attachment bills, attaching these goods for debts of the former firm, under which proceedings Conley & Harrison had been appointed receivers, and placed in possession and control of the stock.

Upon the levy of the execution, the plaintiffs, as receivers, brought this action of replevin to recover possession of the property.

The sole title asserted is that of receivers, in this record, and the theory of the plaintiffs is, that the levy was an infringement upon the jurisdiction of the chancery court and a a violation of its custody of property under its control, therefore wrongful, and they entitled to be be restored by this proceeding to their possession.

His Honor, the circuit judge, sustained the contention of the plaintiffs, and gave judgment in their favor, from which an appeal, in the nature of a writ of error, is prosecuted to this court.

The question urged in argument, that the receiver cannot sustain this action because he does not show any authority from the chancery court to sue, is one not raised in the record. There was no objection taken in the court below on this ground, and if the point had been made, it may be that authority would have been shown. It suffices, however, to say, that the question not having been made on the hearing below, cannot now be assigned for error in this court. The general rule beyond question is, that a