State v. . Burwell and Others

Settle, J.

The defendant furnished the land, the wheat and the guano, and the prosecutor, Boyd, testified upon the trial that the defendant “was to first take out of the crop raised in. the field, the value of his advancements in guano and wheat, if it took all the crop.” What remained after paying for these advancements, was to be divided in a certain proportion between the defendant and the prosecutor.

There is a marked distinction between a lessee and a cropper. Denton v. Strickland, 3 Jon. 61, Lewis v. Wilkins, Phil. Eq. 303. This contract clearly makes the prosecutor a mere cropper, and the defendant had a right to enter the field, for the purpose of getting his share of the crop. This is the view of the case as presented by the prosecution, but we need not consider it, as it was withdrawn from the jury, and another view taken by his Honor, which, we think, placed it in even a stronger light for the defendant. The defendant introduced a witness who testified, that when he, Burwell, started his wagon into the field, the prosecutor, Boyd, “cut at the defendant several times with an axe, that the latter finally struck Boyd with a stick, from the effects of which blow Boyd fell, that Boyd’s sons participated in the fight, and that by one of them Burwell was severely stricken with a hoe.”

Another witness on behalf of the defendant, testified that the defendant stated to him, that the bargain was that, “he, Burwell, was to furnish a quantity of guano and seed wheat and the land, and that the crop made on the land was to be-his (Burwell’s) till he was reimbursed for his advancements, &c.” Here “the Court intimated that the defendant was guilty upon his own showing,” and a verdict was entered accordingly.

As the case was disposed of in submission to this.intimation-from his Honor, we can only consider it as presented by the-evidence on behalf of the defendant. We cannot concur in the view taken by his Honor; on the contrary, it appears from this evidence that the prosecutor assaulted the defendant with a deadly weapon while he was engaged in collecting his advancements, out of a crop which was “to remain his till he-was reimbursed &c.”

It was insisted upon the ai'gument here, that the defendant was guilty because he had not complied with the requirements of the act of 1866-7 ch, 67, entitled “An Act to protect landlords against insolvent debtors.” This act does not take away any rights that the landlord had before, but it gives others; and it would be strange if we were to construe a remedial “act to protect landlords,” so as to diminish their remedies, and leave them in a worse condition than they were-before its passage.-

There is no error. Let this be- certified, &c.

PER CüRIAM. Venire de novo..