Beverly and McBride vs. Burke. covered thereon, for lot No. 67, in which John Burke, the plaintiff in the present action, was a co-defendant. The defendant did not claim that Burke could be estopped by this judgment of former recovery, as to so much of the land as was situated in Fayette County. He contended, however, that inasmuch as the title under which the recovery was had in Campbell County, covered the entire lot, that it was notice to Burke of an adverse claim to the part in Fayette; but the Court ruled out the testimony, and we think rightly. By the Constitution of this State, titles to land must be tried where the land lies. The Court in Campbell, then, had no jurisdiction over so much of lot No. 67, as lay in Fayette. The whole proceeding, as to that, was a nullity; and the exemplification of it was inadmissible, ex suo vigore, to prove notice or any thing else. We will not say that the original papers might not have been produced, not as the pleadings in the cause, but as writings merely, and service of them proven by the officer, as an individual, for the purpose of charging Burke with notice of this adverse claim; but the record, per se, or a copy of it, professes no inherent efficacy to effect this object, for want of juris-diction in the Court. [10.] The defendant's counsel offered in evidence, the answers of Hilliard Baughan to interrogatories, which were excluded by the Court, on the ground that they were not commu-nicated to the opposite party before the cause was submitted to the Jury. The 47th Rule of the Superior Courts provides, "That all objections to the execution and return of interrogatories on appeal trials, the form of the commission or service of notice must be made by the party seeking to avail himself of them before the cause has been submitted to the Jury, or they will not be heard by the Court, provided that the said interrogatories have been twenty-four hours in the Clerk's office; and if they have remained in the possession of the party intending to use them, they shall be communicated to the adverse party before the cause is called for trial." 2 Kelly, 475. What is the correct interpretation of the concluding clause Beverly and McBride vs. Burke. of this rule? Can the party be considered in default under it, unless his interrogatories have been called for? And admitting that it was his duty voluntarily to tender them, does a forfeiture in this respect involve, as a penalty, the exclusion of the testimony? Such, we apprehend, could not have been the intention of the Judges, in framing this Rule of Practice. For if so, we respectfully submit, that it would be in direct conflict with the Statute authorizing testimony to be taken by commission; for the Act declares, that the examination of the witnesses, taken pursuant thereto, shall be heard on the trial of the cause, on motion of either party. Prince, 425, The construction then, we put upon this rule is, that it is directory merely. It gives to parties the right to call for the exhibition of all the testimony taken by commission, before the cause is called for trial; and, consequently, makes it the duty of the Court to compel its production. If this is not done from inadvertence or design, the party holding the interrogatories in his possession, goes to trial at his peril-it being competent for the adverse party, when the interrogatories are offered during the progress of the trial, to take any exception to their execution or return, to the form of the commission, service of the notice, or any other defect. It remains only to dispose of the last exception. [11.] The presiding Judge charged the Jury, "That the possession of the plaintiff was uninterrupted, continuous, notorious, sufficient and adverse." Johns. Rep. 242, 357. 5 Johns. Rep. 467. 8 lb. 495. 7 lb. 5. 1 Johns. Cas. 289. All the authorities concur in holding, that the question of adverse possession is not for the Court to decide, but exclusively for the Jury. 2 Cain. Rep. 168, '69. 1 East. 568. 1 Burr. 397. 2 Cranch, 184. 12 1 Cowp. 103, 217. 11 Johns. Rep. 446. 307. 9 Ib. 102, 174. 10 lb. 334, 377, 380, 417, 475. 11 Wheat. 276, 199, 209, 59, 75. 2 Bay. Rep. 483. 2 Serg. & Rawle's Rep. 527. 2 Bac. Abr. 529. 14 Johns. Rep. 304, [12.] The Act of the last Legislature declares, "That from and after its passage, it shall not be lawful for any or either of the Judges of the several Superior Courts of this State, in any Beverly and McBride vs. Burke. Court, (meaning cause,) whether civil or criminal, or in Equity, during its progress, or in his charge to the Jury, to express or intimate his opinion as to what has or has not been proved, or as to the guilt of the accused." And by the second section it is enacted, "That should any Judge of said Superior Courts violate the provisions of the first section of the Act, it shall be held by the Supreme Court for the correction of errors in this State, to be reversed, and a new trial granted in the Court below, with such directions as they may lawfully make." Pamphlet Laws of 1849, 1850, p. 271, '72. Upon this ground, then, we are left without discretion. The judgment must be reversed, and a new trial awarded. [12.] I have forborne to discuss a point much mooted in the argument, as to what constitutes adverse possession. In Conyers vs. Kenan and Hand, (4 Kelly & Cobb, 308,) some remarks were made as to how far, or to what extent the occupant would be protected in his possessory title. I see no reason to modify the opinion there expressed. No man in this country cultivates his whole tract of land. It is very unusual to inclose the whole. Good husbandry forbids that the whole should be planted. One possession is usually well defined by the boundaries of those which surround it, and frequent acts of ownership over the parts not cultivated or inclosed, give notoriety to the possession of the whole. Nothing but want of due diligence and care, under such circumstances, can deprive the rightful owner of his property. Whether the log pen used occasionally for a grocery, on one side of this unsettled tract of land, with the fragments of old casks in it, constitutes such an adverse possession to the whole, as to give effect to the Statute of Limitations, it would be premature at present to decide. Dennis and others vs. Ray. No. 80.-JNo. DENNIS and others, plaintiffs in error, vs. SAMUEL J. RAY, receiver, defendant. [1.] Where a bill alleged that there was a debt due on a judgment by the copartnership firm of E. W. & J. Dennis, in favor of the Central Bank of Georgia, and that a fi. fa. had issued thereon, which had been paid off by Thomas Crutchfield, and Gregory J. Turner, as indorsers; and upon the trial of the cause a fi. fa, was offered in evidence in favor of the Central Bank of Georgia, against E. W. Dennis, as principal, and John Dennis, Thomas Crutchfield, and Gregory J. Turner, as indorsers: Held, that the fi. fa. was properly rejected on the ground of misdescription, there being no offer to amend the bill so as to make the allegata and probata correspond. [2] As a matter of practice, this Court will not control the discretion of the Court below, in refusing to suspend a cause then on trial, for the purpose of taking up another cause, to permit a defendant's answer thereto to be filed, so as to make it evidence, as an answer in the cause then on trial, especially when the party who had answered was dead, and there were objections raised to its being filed. [3.] The answer of one copartner to a bill in Equity filed against the copartnership, which contains admissions against the interest of the company, although not filed as an answer in the cause, may be read in evidence as a written admission against the copartnership, on due proof of its execution. [4.] Where goods have been purchased in the name of and on the credit of one copartnership firm, and turned over to another copartnership firm, composed of some of the same individuals, without any bona fide or valuable consideration being paid therefor: Held, that a Court of Equity will aid the judgment creditors of the copartners making such transfer, to follow the goods into the hands of the transferees, and require them to account for such goods, or the proceeds of the sale thereof, and apply the same in satisfaction of their judgments. [5.] A defendant, in his answer to a bill in Chancery, cannot charge himself with the receipt of goods, or the proceeds of the same, and also discharge himself, by alleging that he has accounted therefor. In Equity, in Crawford Superior Court. Tried before Judge STARK, August Term, 1850. This was a creditor's bill, filed by the plaintiffs in error, against the defendant in error, to subject certain assets to the payment of the judgment creditors of the firm of E. W. & J. Dennis. The bill alleges that in February, 1841, E. W. & J. Dennis, who had been doing business as merchants and partners for a VOL IX 57 Dennis and others vs. Ray. number of years previous, made a pretended transfer of the goods then on hand, a part of which were on the shelves of the store-house and a part in boxes, unopened, therein, of the value of $2700, to the firm of James J. Ray & Co. the said firm being composed of James J. Ray, E. W. &.J. Dennis. The bill alleges that the change of name of the firm, was merely for the purpose of winding up the business of the old firm, and that no interest in the stock of goods was transferred to James J. Ray-that he contributed no part of the partnership stock of James J. Ray & Co.-that it was verbally agreed by the parties, that Ray should, as a compensation for his services, receive one-third part of the profits of the concern, and be liable for one-third part of its losses. The bill alleges that all the goods afterwards purchased for the firm of J. J. Ray & Co. were purchased in the name and on the credit of E. W. & J. Dennis; that the said firm was dissolved in the year 1844. Among other debts alleged to have been owing by the firm of E. W. & J. Dennis, was one to the Central Bank of Georgia, which it was alleged had been paid off by the indorsers, Crutchfield and Gregory J. Turner. In July, 1844, E. W. Dennis departed this life intestate and insolvent. At August Term of the Superior Court of Crawford County, 1844, James J. Ray was appointed receiver of the assets of the firm of James J. Ray & Co.-that as such receiver, he received into his hands a large sum, consisting of notes, accounts, &c. which was the property of E. W. & J. Dennis, and that the same was the proceeds of the stock of goods on hand at the time of the change of the partnership name, in 1841, and that there was no outstanding debts against the firm of James J. Ray & Co. The bill charges that the said James J. Ray refuses and neglects to pay out the assets received by him, to the judgment creditors of the firm of E. W. & J. Dennis. The bill prays that the said James J. Ray may account for the assets which went into his hands as receiver, and that the same may be applied to the payment of the creditors of the firm of E. W. & J. Dennis. In his answer, among other statements which it is not neces |