78 Ga. 197 | Ga. | 1886
Gilmore took out a warrant against defendant, under section 4077 of the code, to turn her out of a certain tract of land. The defendant proceeded to file her bill, in her own behalf and as nest friend for her children, against plaintiff, in which she alleged that, by reason of her poverty, she was unable to give the bond required by §4079 of the code. She set up title to the premises through one Perkins, to the land by purchase by her husband while in life, and a bond for title to him by Perkins, and that the
The counsel for plaintiff in error insists that this case is governed by the cases of Hall vs. Holmes and wife, 42 Ga. 179; Cherry vs. Ware, 63 Ga. 289, and Huff vs. Markham, 71 Ga. 5-57. It will be seen, by an examination of these cases, that in neither of them was the title of the premises in dispute between the parties, nor will it appear that the relation of landlord and tenant was denied; while, in the present case, the tenancy is denied, and complainant sets forth her and her children’s title independent of the pretended landlord, and denies that he ever had any title whatever, and alleges his insolvency as being unable to respond to complainant for any damages which they, might recover from him by reason of his wrongful act in turning, them out of possession of their land; As it appears to us, this is a bill to restrain a trespass by one who is insolvent; and who is unable to respond for the damages which may be incurred by the.trespass. A court of equity, as a general rule, has no power .to restrain a trespass, but will ordinarily leave the party injured to seek redress for