Meredith v. Knott & Hollingsworth

34 Ga. 222 | Ga. | 1865

Eyoh, J.

There was no error in the refusal of the Court to dismiss the warrant on the ground that it was not issued by the Judge before whom the affidavit was made.

The Judge issuing the warrant, could not have done so without an affidavit; and as that affidavit was made before a Judge having the same power to administer the affidavit as himself, it was p,s binding on the party making it, and as effectual as an authority to the Judge to issue the warrant, as if made before himself.—Crow vs. Morris, 15 Ga., 303.

When the re'al and important question made by this record, and that is, whether prepossessory warrant was a proper proceeding for the recovery of the possession of property in a case like this, was presented to the Court, the question was distinctly put by the Court to. the counsel, whether there was any question as • to the title to the property, involved in the proceeding; and it was as distinctly stated by counsel for both parties, that there was not. The title, then, being conceded to be in the plaintiffs in the warrant, the only question before the Court was, whether the possession, under the circumstances, could be settled by possessory warrant, or rather, whether a possessory warrant was a proper and sufficient remedy ? Ye are clear that it is. After the plaintiffs had purchased the cotton and deposited it with the defendant, his possession was that of the plaintiffs’. They had a right to go and take it whenever they chose ; but when this was denied, and the defendant refused to let them have it, the possession was changed, and that of Meredith was wrongful, tortious, and fraudulent; and in all such cases, we hold that a possessory warrant is the proper remedy.