Strozier, and Warren and Warren, for the defendant below.

H. Morgan, contra.

By Court, LUMPKIN, J. The plaintiff tendered in evidence a certified copy of what purported to be a deed from Joshua Tindal to Humphrey Rowel, dated the seventh of October, 1822, and recorded the twenty-eighth of May, 1836; Joshua Tindal making his mark to the deed; and it purports to have been witnessed by Adam and Williamson, neither of whom attest the instrument officially. Nor is it proved or acknowledged before anybody. The court rejected the copy for any of the purposes for which it was offered either as an authentic copy of a conveyance executed according to law, or as an ancient paper, or as an acknowledgment of the payment of the purchase-money for the land, so as to vest the equitable title in Rowel.

The case of Patterson v. Winn, 5 Pet. 232, S. C., 9 Id. 663, is relied on to justify the introduction of this paper. But there is a fundamental difference between the proof of the power of attorney in that case and the deed in this. The power of attorney purported to be signed and sealed in the presence of Abram Jones, J. P., and Thomas Howard, jun. It was admitted that Jones was a justice of the peace at the time; and William Robinson, the deputy clerk who recorded the deed, testified that he knew the handwriting of Abram Jones, and that his signature was genuine. What evidence is there here that there ever was an original deed? For aught that appears to the contrary, this deed may have been executed in 1836, at the time it was recorded. It is not officially attested. It is proved by nobody, and to crown all, Tindal signs his mark only.

The objection to the deed from Johnson to Patillo was well taken, no judgment or fi. fa. being shown.

Counsel for plaintiff requested the court in writing to charge the jury that if Merritt admitted title in Hand during the time he held possession of the land, he admitted himself tenant under Hand, and could not dispute Hand's title.

We do not think the proof justified this request. Patillo informed Merritt that Hand owned the land; Merritt replied that he had supposed that he himself was the true owner, but that if the land was Hand's, he would buy it; and he authorized Patillo to give Hand fifty dollars for the land. Surely this is not attorning to Hand, or acknowledging himself as Hand's tenant.

There are but two questions in the other bill of exceptions which we deem necessary to notice.

Merrett went into possession of the land in dispute in January, 1845, under the parol gift from Keaton. In 1850 Keaton made him a quitclaim deed. Did that relate back to 1845, and take effect from the commencement of Merrett's possession, so as to constitute adverse possession in Merrett to the whole lot?

No authority has been cited to justify this position, and we think it against principle; and consequently hold that Merrett was restricted to his possessio pedis, or actual occupation of the premises, which seems from the proof to have been limited to the north half of the lot, which is not in controversy.

The other question grows out of the refusal of the court to charge as requested, as to the manner of proving the death of Tindal, and its effect upon the action. The judge was requested to instruct the jury that if Patillo received information as to the death of Tindal, and believed it to be true, and that the case was proceeding for the benefit of Patillo alone, these facts were entitled to much consideration from the jury. On the contrary, the judge charged the jury that they must be satisfied that Tindal was dead at the commencement of the suit, and the fact of his death must be proved by persons acquainted with him.

It is now the law of this court, as settled by several adjudications, that if the lessor of the plaintiff be dead at the time of trial, no recovery can be had on his demise. If he be alive at the commencement of the suit, and die before trial, cost only can be recovered. If dead at the time suit was brought, there can be no recovery in his name of anything.

As to the mode of proving the death, it is certainly not restricted, as the court charged, to the acquaintances of the deceased. But without discussing this point, let us direct our attention to the facts in this case, and inquire whether the information and belief of Patillo as to the death of Tindal are to be considered as proof against him, and to what extent.

We remark that the information and belief of a mere witness would not suffice, and would even be ruled out as incompetent testimony. But Patillo is a party to the action, a lessor of the plaintiff. Does that make a difference?

By a careful examination of all the acts passed by the legis lature, authorizing a party to be examined at common law, it will be seen that his testimony is treated as the answer of a defendant in equity to a bill for discovery. In equity, the defendant answers to the best of his knowledge, information, and belief. Information and belief fall short of knowledge, still they are testimony, and a court of equity might decree upon

AM DEC. VOL LXXI-10

such an answer, it being warranted in believing whatever the party believed to be true against his interest. At any rate, a court of chancery would attach importance to such an admis

sion.

Now, then, Patillo, declaring as he did, under oath, in this case, that from information obtained through General Morgan, his counsel, upon inquiry instituted in Washington county, the former residence of Joshua Tindal, that he, Patillo, believed that Tindal was dead, the jury were entitled at least to have this testimony fairly submitted to them, under a proper charge from the court, and we think the court erred in refusing to give it.

The presumption arising from the extreme old age of Tindal is not conclusive as to his death. The civil law will presume a person living at a hundred years of age, and the common law does not stop much short of this: 2 Greenl. Ev., sec. 278 c, and notes; Best on Presumptions, 139; Benson v. Olive, 2 Stra. 920.

The foregoing points must control this case, and we have neither the time nor the inclination to notice all the changes rung upon them in the hundred and one requests to charge, embodied in the bill of exceptions. In that "Pandora's box" of evils, the new trial act of February, 1854, the clause most pregnant with mischief is that which makes it obligatory to grant a rehearing in all cases where the presiding judge shall refuse to give a legal charge, in the language requested, when the charge so requested is submitted in writing. This one act has more than doubled the delay and cost of litigation in Georgia, without possessing one redeeming feature of public benefit.

New trial granted.

CERTIFIED COPY OF DEED NOT DULY EXECUTED OR PROVED not admis. ible in evidence: See Budd v. Brooke, 43 Am. Dec. 321; Rushin v. Shields, 56 Id. 436, and notes.

SHERIFF'S DEED WHETHER ADMISSIBLE WITHOUT PROOF OF JUDGMENT AND EXECUTION: See Bybee v. Ashby, 43 Am. Dec. 47; McIntyre v. Durham, 45 Id. 512; Carson v. Huntington, Id. 273; Owen v. Barksdale, 47 Id. 348; Bolles v. Beach, 53 Id. 263; Burkhalter v. Edwards, 60 Id. 744, and notes.

DEATH OF PLAINTIFF'S LESSOR IN EJECTMENT, EFFECT OF: See Bryan v. Averett, 68 Am. Dec. 464.

LUCAS v. PARSONS.

[24 GEORGIA, 640.]

PAPER DULY SIGNED AND ATTESTED IS WILL entitled to probate, which declares that it is the maker's last will and desire respecting his property, and that he has made a previous will which is contrary to his present wishes, but which is now out of his possession, so that he cannot destroy it, revokes all former wills, and leaves the distribution of his property under the laws of the state.

WILL DISPOSING OF PROPERTY ACCORDING TO LAWS OF DISTRIBUTION is valid in Georgia, though not in England, and the heirs take under the will, and not by descent.

PAPER WHOSE VALIDITY AS WILL IS CONTESTED MAY BE READ TO JURY

on appeal from the ordinary, but such reading gives it no validity. ATTESTING WITNESSES TO WILL MAY TESTIFY TO SIGNING IN TESTATOR'S PRESENCE, where the attestation clause states only that the will was signed, sealed, etc., in the presence of the witnesses.

WILL IS INVALIDATED BY DELUSION, where it is the result of the delusion, but not otherwise, as a general rule.

UNDER CAVEAT CHARGING WILL TO BE RESULT OF DELUSION AGAINST CAVEATOR specially, the jury's attention should be particularly called to that issue.

RESENTMENT OF TESTATOR AGAINST SON NOT Amounting to DELUSION will not vitiate a will prejudicial to the son, made in accordance with previously declared intentions.

CAVEAT to will. The paper propounded as will was signed by the testator's father and attested by five witnesses. The substance of it is stated in the opinion. The attestation clause was: "Signed, sealed, and published and delivered, in the presence of the undersigned as witnesses, this the second day of April," etc. The grounds of the caveat need not be stated further than they appear from the opinion. The ordinary pronounced in favor of the will, and the caveator appealed. The jury found a verdict for the proponents. The caveator moved for a new trial, which motion was overruled, and he brought the case up on exceptions. It is unnecessary to state any of the grounds of the motion for a new trial, except the seventh, as the others, so far as necessary to the decision of the case in the supreme court, sufficiently appear from the opinion. The seventh ground was that the court erred in qualifying an instruction asked by the caveator. The instruction asked was: "That when there is a great change of testamentary disposition, and a total departure from former testamentary intentions long adhered to, without any adequate or rational motive or reason for the same, especially if at the time of making the subsequent will the capacity of the testator is at all doubtful, these are circum

stances which go strongly to show that the will is not the act of the testator, and requires explanation." The instruction was given, with the addition of the words, "but such doubt must exist as to the capacity of the testator at the time of the execution of the will."

Pinkard and Stephens, G. R. Hunter, G. R. Culverhouse, and Miller and Hall, for the plaintiff in error.

R. P. Trippe, Poe and Grier, and G. W. Norman, contra.

By Court, McDONALD, J. This cause was tried in the superior court of Monroe county. Several points were made during the progress of the trial, the decisions of which by the court below were excepted to by counsel for the caveator of the will, and after a verdict in favor of the propounders, they were incorporated with other grounds in a motion for a new trial.

The court refused the motion, and his judgment thereon is assigned as error. As we put our judgment on a single point, it is scarcely necessary to go into an elaborate consideration of all the grounds presented in the recerd. We will, however, advert to them in a manner to narrow the points of controversy between the parties on a future trial.

It is first objected that the court erred in holding the paper propounded to be testamentary in its character and entitled to probate. The paper propounded is short, but the whole tenor of it is testamentary. The testator, for we may call him so, declares it to be his last will and desire as regards his property, and the disposition of the same. It is true that this declaration alone would not constitute it a will; but taken in connection with its contents, it is entitled to much consideration. He proceeds to say that he had theretofore made a will which was out of his possession, and he could not obtain the same to destroy it. Here is indicated strong dissatisfaction with a will which he has made, and his wish to cancel it. He assigns a good reason for desiring to cancel it, that it would be unjust to some of his children, as he had by that will given all his money and notes to one legatee, and they had largely increased since the date of it. He revokes and annuls that will, and any other will which he may have made. He leaves his property to be distributed under the laws of Georgia, reserving to himself the right to dispose of it thereafter.

His will, as it then was, was not such as he desired it to be. It was unequal. One of his children would, by the accumulation of money and notes since it was written, have considerably