
    ROBERT N. SIMPSON, et al., plaintiff in error, v. JESSE WALL, defendant in error.
    (Atlanta,
    June Term, 1870.)
    INTRUDERS—AFFIDAVIT TO REMOVE—DUTY OF SHERIFF—COUNTER AFFIDAVIT—WHEN COUNTER AFFIDAVIT FILED.—When an affidavit is made for the removal of an intruder, in possession of land, as provided by the Code, it is the duty of the sheriff to, at the earliest practicable day, to exhibit the affidavit to the person described therein, as being in possession of the land, and to turn such person out of the possession thereof: unless, the person ' so in possession, shall at once, tender to the sheriff a counter affidavit, stating that he does, in good faith, claim a legal right' to the possession of said land, which oath, the sheriff is a competent officer to administer:
    
      *Held further, that if the person in possession of the land, does not at once, tender to the sheriff such counter affidavit, unless prevented by the fraud or misconduct of the sheriff from doing so, (which does not appear in the record of this case,) until after he has been turned out of possession, he cannot afterwards, file his counter affidavit, so as to give the Court jurisdiction to award a restitution of the possession of the land, under the provisions of the 'Code.
    Intruders, Before Judge Johnson. Muscogee Superior Court. November Term, 1869.
    On the 3d of February, 1868, Robert N. Simpson made an affidavit under section 4000 of Irwin’s Revised Code, to eject Jesse Wall from certain premises therein 'described.
    On the 11th, of said .month the sheriff made a return upon it, stating that he had removed Wall and his goods “from the houses occupied’ by him” on said premises, “permitting him to remain on the land upon the pledge to remove therefrom as soon as the creek fell, and could be crossed,” and that he “had delivered possession of said houses and lands” to Simpson. On the 12th of said month, Wall made á counter affidavit under said section, and tendered it to the • sheriff, with a view of being reinstated into said premises, but Martin, the sheriff, would not restore the possession. Wall moved a rule against Simpson and the sheriff requiring them to shew cause why he should not be' restored to the possession of said, premises, averring therein substantially, that he did bona fide claim a legal right to the possession thereof, but did not know that he could stop said proceeding by a counter affidavit till next day, after he had gone to ■ Columbus and consulted counsel. Simpson’s counsel moved to dismiss said case, as to himself, upon the ground that such rule did not lie against a private citizen. The Court overruled his motion and ordered them to answer. Simpson answered that Jesse Wall’s mother died in 1866, that said land was hers; that Jesse took possession of it after his mother’s death; that her administrator rented the premises to him, Simpson, and because Jesse Wall would not give him possession he sued out a warrant against him, which was met by a counter affidavit of Jesse Wall’s, setting up that *he had rented said lands, and that his time had not expired ; that Mrs. Wall’s administrator sold said premises at public outcry, and he, Simpson, brought the same, and after the time fixed by Jesse Wall for the termination of his pretended term, sued out said last affidavit bona fide to get possession, and that Jesse Wall did not pretend to have any right there, but simply said that the administrator ought not to have sold the land.
    The sheriff answered that he went with Simpson on said premises about 9 o’clock, a. m., and tried to persuade Wall’s family to vacate the houses; that after waiting an hour or so, he put some chairs out, when Mrs. Jesse Wall threw scalding water at him, saying her attorney had advised her to resist any effort to eject her from the houses; that finally Wall and one of his neighbors, moved out the goods without any intimation of any claim of right to the possession of said premises being made by Wall; that he acted legally and bona fide. These answers were sworn to. Jesse Wall’s counsel traversed these answers, and thereupon a trial was had. Evidence was introduced on’ both sides; Wall testified that he went into possession of said premises many years before, living with his mother, and undertook to prove, by the circumstances of said renting and sale by the administrator, that there was a fraudulent combination between Simpson and the administrator to get him out of possession. This evidence as to fraud came in over the objection of Simpson’s counsel.
    Simpson and said administrator, as witnesses, testified as to said renting and sale, and said they were bona fide. Several witnesses testified that Jesse Wall was unworthy of belief on oath. Simpson’s deed was also read in evidence.
    The evidence being closed, the cause was argued to the jury. Simpson’s counsel were treating said answers as evidence, when this was objected to. Judge Worrill, then presiding, sustained the objection, stopped Simpson’s counsel, and said in the hearing of the ‘jury, that said answers were only pleadings, and not evidence. Judge Worrill charged the jury that they had nothing to do with the title to said ^premises, that the simple question for them to consider was, whether Wall was an intruder or not; that by law lands descend directly to the heirs, and if. Wall was an heir he was not an intruder. Further, he charged that the Act providing this remedy contemplated a reasonable time for the party to make his defence, and if the sheriff did not give this time they must find for Wall.
    The jury found for Wall. Simpson’s counsel moved for a new trial, upon the ground that the Court erred in compelling Simpson to answer said rule, in holding that his and the sheriff’s answers were not evidence, in allowing the order of the Ordinary and sale thereunder to be attacked by parol testimony, because the first sentence of the charge was erroneous, because he should have charged that Wall was an intruder as against a purchaser at the administrator’s sale, and because the verdict was contrary to law, and the evidence. ' This rule was heard by Judge Johnson, after he succeeded Judge Worrill. He refused a new trial, and that is assigned as error on said grounds.
    Blanford & Thornton, for plaintiff in error.
    H. L. Benning, James Russell, for defendant.
   WARNER, J.

The error assigned to the judgment of the Court below, is the overruling the motion for a new trial, on the several grounds specified therein. In our judgment, according to the statement of facts contained in the record, the Superiors Court of Muscogee county had no jurisdiction to hear and determine the question of possession under the 4000th section of the Code, which provides for the removal of intruders from the possession of lands and tenements. The Superior Court acquires jurisdiction in such cases where the party in possession complies with the terms and provisions of the Code, that is to say, the party in possession of the land must at once tender to the sheriff a counter-affidavit stating that he does in good faith claim a legal right to the possession of *the land or tenement. There was no counter-affidavit tendered by Wall to the sheriff until the next day after he was turned out of the possession of the land, which the sheriff properly refused to receive at that time. There is no pretense that he was prevented from tendering his counter-affidavit at the proper time, by the fraud or misconduct of the sheriff, so as to make the officer amenable to the Court, by way of a rule, to show cause why he should not restore him back into the possession of the land. The Court below erred, in our judgment, in not granting a new trial, and setting aside the verdict.

Let the judgment of the Court below be reversed.  