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Pledger and Pledger vs. McCauley.

fendants is, that the complainant, after the establishment of the mercantile concern, attended to the store, and the defendant, Allen Pledger, attended to the mill. According to the answer of the other defendant, he worked sometimes at the store and sometimes at the mill. The conditional note given by Allen Pledger to McCauley, taken in connection with the arrangement made at the time the first bill was dismissed, is some evidence on this point. The amount of the note was to be paid to the complainant, provided that amount falls due to him, on a settlement of the firm of McCauley & Pledger. When the first bill was dismissed, the money in the Sheriff's hands was paid to the debts of McCauley & Pledger, except the sum of $282 98, which was paid to complainant, for money paid by him for McCauley & Pledger. If McCauley was to pay, why reimburse him from the money of his copartner? The amended answer of Allen Pledger says, that the firm, that is, the mercantile firm of Allen Pledger, was worth about the sum of five hundred dollars only, in notes, books and accounts, and some remnants of goods, and yet, the entire amount of the money in the hands of the Sheriff, raised from the sale of what is stated in the answers to have been the individual property of Allen Pledger, was applied to the payment of the debts of the firm of McCauley & Pledger, and to reimburse McCauley in a sum alleged by him to have been paid for them.

The same facts and circumstances may be referred to in considering the second issue. In reference to the third matter, to-wit: whether the assignment of the fi. fas. to Thomas Pledger was fraudulent or not, the fact that he yielded to the demand of McCauley in the first bill, that the money in the hands of the Sheriff should be applied to the payment of debts, exclusive of his own, due by the firm of McCauley & Pledger, and to the reimbursement of McCauley, one of the members of that firm, who was his creditor, if the transfer was free from fraud, is entitled to much consideration.

It is, however, by no means conclusive; for the defendant,

Pledger and Pledger vs. MeCauley.

Thomas Pledger, may have had a sufficient motive for his conduct, if the transfer was bona fide, and the debt was really due him. But we are now considering whether the equity of the bill was fully denied by the answers. So much for the points above named.

There is another matter connected with these transactions to be noticed. Allen Pledger turned over to Hand, Williams & Co., the notes of Thomas Pledger, as collateral security for a debt due them by McCauley & Pledger. Thomas Pledger bought up that note, having two years and an half to run, at twelve per cent. discount. A creditor holding collaterals has no right to make such a sacrifice of the securities of his debtor. The interest of Allen Pledger was certainly sacrificed in this arrangement, and he had a right to call on his creditor to allow him the full amount of the collateral security, less the legal discount, on his debt; and there being no evidence that he did not submit quietly to the loss, might, taken in connection with his relationship to one of the parties, and the extraordinary length of time to which the credit was extended, be regarded as throwing suspicion on the transactions between him and his father; but it should be remarked that it affords no conclusive presumption of wrong.

Again; the defendant, Allen Pledger, gives no account of the stock of goods on hand, the notes, book accounts, &c.; but contents himself with making a lumping estimate of them all, at about five hundred dollars. He ought to be able to show an account of the stock on hand at that time, and furnish a schedule of notes and accounts due, and what was collected on them. He may be able to make such an exhibit now. The Court below, under all these circumstances, did right in refusing the motion.

Judgment aflirmed

Markham vs. The State.

NATHAN M. MARKHAM, plaintiff in error, vs. THE STATE OF GEORGIA, defendant in error.

[1.] The possession and occupancy of a house by a person, as a dwelling house, is sufficient evidence of ownership thereof in that person, to support an allegation in an indictment for larceny from the house, that the prisoner entered the dwelling house of that person.

[2.] When there is no evidence that a boarder hired a particular room to lodge in, it is not error in the Court to refuse to charge the jury, that the indictment ought to have charged the offense to have been committed in the hired lodgings of a boarder.

Larceny and new trial, from Fulton county. Decided by Judge BULL, October Term, 1857.

Nathan M. Markham was indicted for entering the house of Aaron M. Thomason, and stealing therefrom a silver watch, the property of Jeremiah Parker.

Upon the trial the Solicitor General introduced John Cook, who swore, that he was boarding at the house of Thomason; Parker and prisoner roomed together; Parker had been in the room two or three months; prisoner two or three days; Parker and witness went into the room one morning, Parker going to open his trunk which was not locked; the same evening prisoner was sitting in the porch about sundown, intoxicated, and remained there till 9 or 10 o'clock; witness, Parker and another man carried him in the room to bed, and as Parker was pulling off his shoes, something dropped on the floor, and a watch was found and picked up; this watch witness had seen Parker have before. They got the Marshal and carried prisoner to the calaboose; While there Parker told prisoner why they had taken him there; that they had found the watch in his shoe, and that the prisoner had broken open his trunk and taken it; prisoner said he had taken the watch off the washstand, and that he carried it to a jeweler's on Whitehall street; witness and Parker went to Marchal's; at the calaboose the prisoner did not deny that it was the watch

Markham vs. The State.

Parker claimed; witness had seen it in Parkers possession for months before.

Joseph Marchal sworn, testified, that prisoner brought a silver watch to witness's watchmaker's shop in August, and asked witness to repair it; after he left the watch he came back the same day or the day after; witness laid the watch on the show case and turned away, and when he looked again prisoner and the watch were both gone; it was the same watch as that brought to him by Parker.

D. Brooks swore, that he was with prisoner on the day that he was put in the calaboose, and that prisoner told him. that he was going to Cleveland, Tennessee, that night; that he had a watch at the jeweler's to be repaired, which he wished to get before leaving; witness saw him again late in the evening; that he was drunk, sitting down and talking loud; witness took hold of his foot to shake him, to caution him not to talk so loud; felt something in his gaiter which he took out and found to be a small silver watch; witness put it back and left him.

No evidence was introduced by the prisoner.

The Court, among other things, charged the jury, "that if Aaron M. Thomason was in possession and occupancy of the house from which the watch was alleged to have been taken at the time it was taken, that this was prima facie evidence of ownership, and sufficient to sustain that part of the charge in the bill of indictment."

Defendant's counsel requested the Court to charge the jury, "that if they believed from the evidence that the watch was taken from the hired lodgings of a boarder in the house of Thomason, that the indictment should have so charged it, and that it was not sufficient to have charged that the watch was taken from the house of Thomason." This charge the Court refused to give, and the defendant's counsel excepted. The jury found the defendant guilty, and he moved for a new trial on the following grounds:

Markham vs. The State.

1st. Because the verdict is contrary to the weight of evidence, and contrary to law.

2d. Because the Court refused to give the charge as requested by the defendant's counsel above set out.

3d. Because the Court charged the jury as above set out. This motion was overruled by the Court, and the defendant excepted and filed his bill of exceptions, saying that the Court erred,

1st. In refusing to charge as requested by defendant's counsel.

2d. In charging the jury as he did charge.

3d. In refusing to grant a new trial upon the grounds taken in said motion.

HAMMOND & SON, for plaintiff in error.

SOL. GEN., contra.

By the Court.-MCDONALD, J. delivering the opinion.

[1.] The possession and occupancy of the house by Thomason, was evidence of such ownership thereof in him, as was sufficient to sustain the allegation in the indictment that the prisoner entered his dwelling house.

[2] There was no evidence that the room from which the watch was stolen, was the hired lodgings of a boarder. A boarder lodged there, but there was no evidence that he had hired that particular room. There being no evidence to support the request made by the prisoner's counsel of the Court to charge the jury, it was not error in the presiding Judge to refuse it.

The verdict of the jury is well sustained by the evidence.

Judgment affirmed.

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