New v. LeHardy

46 Ga. 616 | Ga. | 1872

Montgomery, Judge.

1. Judge Lumpkin has somewhere said that a party may waive everything, even a trial, by confession of judgment or plea of guilty. Surely there is nothing peculiar in the written notice required to be given of the sanction of a writ of certiorari that takes it out of so sweeping a rule — 'the waiver itself being in writing.

2. In this case the plaintiff lost his property some six years before he sued out his possessory warrant. The horse then had not been “recently” “in the quiet, peaceable and legally acquired possession” of the plaintiff. But there is another class of cases in which a possessory warrant will lie, to-wit: where “ any personal chattel has been taken, enticed or carried away either by fraud, violence, seduction or other' means, from the possession of the party complaining.” In this class of cases no lapse of time will bar the plaintiff if he makes out his case in other respects, unless the defendant shows that he has. been in possession for four years next immediately preceding the issuing of the warrant. But the onus is on the defendant. Perhaps if he show that he and those under whom he claims has been in possession for that length of time it will suffice. In this case the defendant has shown neither.

Judgment reversed.