Tucker v. Edwards , 71 Ga. 602 ( 1884 )

Jackson, Chief Justice.

A horse was exempted under section 2040 of the Code-1 by the husband and father, as head of the family, for his> wife and children. The husband was put in jail, and the defendant took the horse from the rack where he was hitched. The wife, for herself and minor children, took out •a possessory warrant for the horse, and the justice of the peace awarded her the possession. The superior court dismissed a certiorari complaining of this j udgment, and affirmed the action of the justice of the peace, and error is assigned here on the dismissal of the certiorari and the .affirmance of the action of the justice court.

There can be no doubt at all that the horse was illegally and fraudulently taken from the possession of the husband and father, when put in jail at night. He left the horse hitched to a rack, and without leave or license he was taken by defendant to the possessory warrant, from the .rack. Afterwards he frightened the father and husband, while in jail and under duress, to give a sort of consent to the illegally acquired possession; but the whole transae'tioii appears tortious and invalid. He did set up a sort of claim to the horse by virtue of a constable’s sale, but paid not a cent, and turned him over to the head of the family, who it seems afterwards paid off the fi. fa. himself. The single question worth a moment’s thought is, whether the head of the family or the wife should have brought the. possessory warrant. It is purely technical which should bring it. The real use and possession is in the wife and children. Code, §§2040, 2018. It is for their u use and benefit,” as those sections declare, and the husband’s possession is for them, and is therefore their possession; and as she brings the case for herself and the miuor children, doubtless because of the sort of extorted consent of the ffiusband, and as no consent of his could legally dispossess them of the horse, we shall rule that the warrant was properly sued out by the wife and minors, and the possession properly restored to them.

Judgment affirmed.