
    *WILLIAM WEBB et al., plaintiffs in error, v. BEVERLY PARKER et al., defendants in error.
    (Atlanta,
    January Term, 1871.)
    NEW TRIAL—EQUITY—EVIDENCE—MISTAKE, SURPRISE AND MISPLACED CONFIDENCE.—The complainants allege that the counsel for the defendants told the counsel for the plaintiffs that they had a copy of the plat and grant to the lot of land in dispute, and that it would not be necessary for plaintiffs to obtain one, as the counsel for the defendants would furnish it on the trial; that relying upon this statement of the defendants counsel, the plaintiffs did not procure a copy of the grant; that upon the trial the counsel for the defendants, in pursuance of said agreement, did furnish what purported to be a copy of said original plat and grant, issued from the Secretary of State’s office, remarking at the time, “here is a copy plat and grant—we make no point upon that;” the counsel for the plain■tiffs believing, as was stated by the counsel for the defendants, that it was a copy of the original plat and grant to the lot of^ land in dispute, did not critically examine it, and it was offered in evidence. The defendants demurred to the bill for want pi equity, which was sustained by the Court below, and the bill dismissed:
    Held, That the allegations in complainants’ bill make such a case as entitles the complainants to relief on the ground of mistake, surprise and misplaced confidence in the statements of the defendants’ counsel in relation to the copy plat and grant, whether intentional or otherwise; the more especially as the judgment of this Court reversing the judgment of the Court below (at a former term,) was placed on the sole ground that the copy grant was to lot number one hundred and seven, as set forth in the record then before it, but which is now shown to have been a mistake, and the lot in dispute, number one hundred and twenty-seven, was, in fact, granted to Scott, under whom the plaintiffs claimed, and not number one hundred and seven.
    New Trial. Mistake. Evidence. Before Judge Clark. Chambers. Sumter county. August, 1869.
    William Webb and his wife, and Jack Brown, by their bill, made the following averments: They brought ejectment for lot number one hundred and twenty-seven, in the twenty-seventh district of said county, against Beverly Parker, to October Term, 1856, of said Court, upon the demises of William T. Scott et al. The cause stood for trial on the appeal by counsel, at October Adjourned Term, 1866. Webb and wife had employed B. Hill, Esq., to represent them in said cause and he had leave of absence from said adjourned term. At said term counsel agreed, in writing, “that a copy grant may be used in the place of the original grant, in the *same manner as the original might be,” which is signed, “B. Hill, N. A. Smith, attorneys for plaintiff. McCay & Hawkins, defendants’ attorneys.” At said adjourned term said McCay told said Smith that defendants’ counsel had a copy plat and grant to the lot in dispute, and that it would not be necessary for plaintiffs to get one, as defendants’ counsel would furnish it on the trial. Relying on said agreement and statement plaintiffs’ counsel did not obtain a copy plat and grant from the office of the Secretary of State, but relied wholly on the one in possession of defendants’ counsel, and plaintiffs’ counsel had no opportunity to examine it, nor did they think it necessary to do so, as they relied upon said promise to furnish a copy plat and grant.
    Said cause was tried in Hill’s absence. On the trial, when defendants’ counsel were called on by plaintiffs’ counsel for a copy plat and grant for the premises in dispute, they handed to plaintiffs’ counsel a copy plat and grant purporting to have been issued from the office of the Secretary of State, and was, as they believe, so issued, “saying, in effect, at the time, here is a copy plat and grant—we make no point upon that.” Plaintiffs’ counsel did not read it, or critically examine it, believing it was, “as stated by counsel for defendant,” a copy plat and grant for the lot in dispute.
    
      The jury found for the plaintiffs. Defendants moved for a new trial, upon various grounds, and the Court granted a new trial. Defendants brought said cause to this Court by bill of exceptions. After the bill of exceptions was signed, but not .before plaintiffs’ counsel discovered that said copy plat, furnished by defendants’ counsel, and used as evidence by plaintiffs’ counsel, was for number one hundred and seven in said district, and not for number one hundred and twenty-seven. Upon examining the Secretary of State’s office, they found that a grant did issue to William T. Scott for number one hundred and twenty-seven, but none for number one hundred and seven and they obtained a copy of it from said office. They aver that this change of numbers was in the copy plat only, and they supposed was by mistake of the copyist who made it for McCay & Hawkins.
    *The cause was argued in this Court and it reversed the judgment below, solely because plaintiff did not show any title to number one hundred and twenty-seven by said evidence. (See Roe, casual ejector and B. D. Parker, tenant, v. Doe, ex dem, Jack Brown et al., 29th Georgia Report, 50.) In 186- James Powell, of Randolph county, Georgia, bought said lot from said Parker, and is in possession of it, trying to sell it.
    They prayed that James Powell be made a defendant and be enjoined from selling said land; and that a new trial be granted in said ejectment cause, because it was tried in Hill’s absence, and because plaintiff’s counsel were mislead by said error, or mistake, whether intentionally or not.
    The bill was sworn to by Jack Brown in the usual form. N. A. Smith affirmed that “the representations charged to have been made by counsel for defendant, are true, to the best of his knowledge and belief,” and were made to him as an attorney for plaintiff. Webb and .wife testified, that for four years they had lived in Buena Vista, Marion county, and had all that time relied on B. Hill as “their leading and chief counsel,” for the management of said cause; that they were not present at said trial, but are informed it occurred in Hill’s absence, though he had leave of absence from said term, and that had they been present, they “would have desired the Court to have regarded and given effect to said leave of absence.” Hill affirmed that he was first employed bv Brown, then by Webb, and that N. A. Smith had made out the interrogatories, under his direction; that at said trial he was. at the Supreme Court, with leave of absence from said Superior Court, granted by Judge Clark; that had he believed said cause would be tried in his absence, he would have procured other competent counsel to represent him on the trial; and further, that he did not hear of said trial till after the grant of the new trial aforesaid.
    Judge Clarke ordered Parker & Powell to show cause why this injunction should not issue. Powell answered, sayirfg: When the cause was called for trial, Hill’s associate counsel, N. A. Smith, who was original counsel, went to trial willingly, *nay eagerly, making no mention of Hill’s absence, and that too, when Parker’s counsel endeavored to continue the cause. He does not deny said mistake in said plat, but says that McCay & Hawkins did not know it either, and Webb’s counsel are alone responsible for carelessness in not examining the paper. Further, he believes from the evidence on said trial, that Parker had title hy Statute of Limitations, and that the jury found for him upon that and other grounds. He does not believe the William T. Scott, under whom plaintiffs claim, drew said lot, because said Scott was in 1826 (the date of the grant) a minor residing in South Carolina, and not “in McDonald’s district, Chatham county,” as the drawer did, as appear by the grant; that the real drawer was William T. Scott, a Scotchman, of said district. After the said Supreme Court decision, and after Brown and Webb had led him to believe they would no longer litigate the matter, in October, 1869, he sold said land to Josiah A. Parks, who took possession of it, as a bona fide purchaser, without notice of any intention to begin this litigation, and this sale he made after openly and publicly trying to find a purchaser, and he believes, part, if not all, of plaintiffs knew he was trying to sell it.
    And Parker demurred to said bill, upon the grounds that it had no equity in it; said, if any, it was sworn of by said answer; that he had title to said land by Statute of Limitations, and that the whole cause was res adjudicata, and, therefore, the Court could not grant the relief asked for. After argument, the Chancellor dismissed the bill, and that is assigned as error.
    B. Hill, N. A. Smith, for plaintiff in error.
    Hawkins & Burke, for defendant,
    said, new trial should be applied for at law: secs. 3668, 3670, Irwin’s Code. Laches of counsel defeats right of new trial here: 25th Ga. R., 182; 37th, 48. The case is res adjudicata: 39th Ga., 50. '
   *WARNFR, J.

The allegations in the complainants’ bill made such a case as entitled them to relief, on the ground of mistake, surprise, and misplaced confidence, in the statement of defendants’ counsel, in relation to the copy plat and grant, whether intentional or or otherwise. And the Court below erred in sustaining the , demurrer thereto, and. dismissing the same.

Let the judgment of the Court below be reversed.  