
    
      Price vs. Ford.
    
    Ejectment
    Case 87.
    Error to the Floyd Circuit; Silas W. Robbins, Judge
    
      Surprise. Mew trial.
    
    June 19.
    New trial awarded, against the decision of the circuit court, on the ground of surprise, by the early trial of <he cause, before defend • ant’s arrival at court, and the absence of witnesses.
   Chief Justice Bibb,

delivered the opinion of the court.

It seems to this court, that the unexpected trial and verdict, before the defendant arrived, although by twelve o’clock of the first day of the term; the absence of witnesses summoned to prove adverse possession of upwards of twenty years under a conflicting title, which adverse possession, must also have been under an elder grant, (for the patent of Madison, under which the defendant claims, is elder than that of Graham, under which the plaintiff ■Claims,) were sufficient causes for setting aside the verdict and judgment, and granting the defendant in ejectment a new trial. As the other points stated in the bill of exceptions may not occur again on tiie trial, the court expresses no opinion on them.

Triplett for plaintiff; Mayes for defendant.

Judgment reversed, and' cause remanded for a venire facias de novo.

Plaintiff in this court to recover his costs.  