Byrd & Coker v. H. R. Johnson & Co. , 38 Ga. 113 ( 1868 )

McCay, J.

1. The first section of the Act of 15th December, 1866, which enacts that landlords may have a lien, etc., does require that it shall be by “special contract in writing.” But the second section, which relates to factors and merchants, only says that the lien may be upon such- terms as may be agreed upon between the parties. Why this difference should be made, we confess we do not see. Such, however, is clearly the will of the Legislature as deduced from its words.

2. Upon the demurrer, the facts of the bill are admitted, and this bill clearly charges the agreement, the furnishing of the supplies, the making of the cotton, and that four bales of it, or its proceeds, are in the hands of H. R. Johnson & Co., the agents of the planter. If the lien is good at all, it is good against the maker of it, and his agents and purchasers, with notice. The demurrer, then, ought to have been overruled. -

Ordinarily this Court will hesitate greatly before it will interfere with an order of a judge dissolving a temporary injunction. In this case, however, the dissolution is in fact a total denial of the complainants’ rights. If this writ is discharged, he is, according to his bill, remediless. We do not think, therefore, that, under the answer and affidavit, the writ ought to have been discharged. The affidavit did not pretend that Harris was not fully aware of the complainants’ lien, whilst the answer stated nothing material which was responsive to the bill, except upon mere hearsay and belief. We think the case ought to he held for trial, when the parties can be fully heard, and their rights be determined by . a jury-

There may arise, on the trial, a very interesting question under this statute. The statute provides that the liens therein provided for shallbe enforced in the same way and manner that liens are now enforced against steamboats in this State. It has been contended that this gives to the factor a preferred lien; that like the lien of steamboat employers, it is of “ the highest dignity.” We make no decision, at present, upon this point. This case, in its present aspect, does not require it, and the question is one of great importance. When it is properly made, will be time enough to decide it. Judgment reversed.