121 Ga. 615 | Ga. | 1905
ness may refresh and assist his memory by the use of any written instrument or memorandum, provided he finally speaks from his recollection thus refreshed, or is willing to swear positively from the paper.” Civil Code, § 5284. In Printup v. James, 73 Ga. 583, .Mr. Chief Justice Jackson doubted whether it was possible for the recollection of a witness to be refreshed by an instrument which he did not prepare. In Lenney v. Finley, 118 Ga. 427, there is, however, a distinct ruling that the recollection of a witness may be refreshed by such an instrument, provided he ultimately swears from his recollection as thus refreshed, but that in order to. testify positively from the paper itself he must either have made the- paper himself or, at some time when the facts were
The prosecutor claimed to own the land and the fence. The accused claimed to own the land, and therefore asserted what she believed was her right to remove the fence, which she did because it interfered with the cultivation of the land. The question of ownership of the land is, under the evidence, close and doubtful. The husbaud of the accused was at one time owner of the land. He conveyed it to Mrs. Clements. After this conveyance a homestead was set apart to the husband as the head of a family. The conveyance to Mrs. Clements was for the purpose of securing a debt due to her. After the death of the husband Mrs. Clements was proceeding to eject the accused, and Raines, at the request of the accused, seems to have paid up an amount which satisfied Mrs. Clemants’ claim upon the land, and a deed was made to Raines. There was an agreement between the accused and Raines that he should hold title to the property, not only until the amount paid Mrs. Clemants was repaid but also an additional sum which the accused owed to him. The accused claimed that she had paid Raines the entire sum that she owed him. It is claimed by Raines, that he and the accused agreed to divide the land ; the accused to take the south half and he the north half; that a deed was made and delivered to the accused by virtue of this agreement ; and that thereafter Raines sold the north half to the pros
Judgment reversed.