
    No. 23.
    Charles T. F. Cardin, plaintiff in error, vs. John Standly, defendant.
    
       In a proceeding under the Act of 1854, to protect land owners against, intruders, and to give land owners a remedy in certain cases, the occupant’s affidavit was, that he held under D, and that D claimed a legal right to the possession. D also made an affidavit: Held, that neither affiadvit. was such as the Statute required.
    
      
      Held, too, that the affidavits in a proceeding of this sort, are not what constitutes the pleadings; and that, therefore, they are not amendable under-the Amendment Act of 1854.
    Affidavits, &c. in Randolph Superior Court. Decided by Judge Kiddoo, May Term, 1856.
    This was a proceeding under the Act entitled, “ An Act to-protect the owners of lands or tenements against intruders, &c.” approved February 14th, 1854, and arose upon the following affidavit and counter affidavits, to-wit
    “ State op Georgia — County op Randolph :
    Personally appeared before me, Thomas Coleman, a Justice of the Peace for said county, John Standly, who, being duly sworn, saith that he does bona fide claim the right of possession to lots of land, Nos. (5 and 6) five and six, in the seventh district and the west half of No. three hundred -and eight, in the sixth district of said county; and that said lots of land are in possession of Charles T. F. Cardin, who does not, in good faith, claim a right to such possession, and yet, refuses to abandon the same. Sworn to and subscribed before me this March 21st, 1856.
    JOHN STANDLY.
    Thomas Coleman, J. P.”
    State op Georgia — Randolph County:
    Personally appeared before me, Richard Davis, Sheriff of said county, Charles T. E. Cardin, who, being duly sworn,, saith that he is tenant in possession of lots Nos. 5 and 6, in the original seventh of said county, and the west half of three-hundred and eight of the sixth district of said county; and. that he holds possession under Lemon Dunn, who claims a legal right to the possession of the above mentioned lots of' land. Sworn to and subscribed before me, this April 16th,. 1856. CHARLES T. E. CARDIN.
    Richard Davis, Sheriff.
    These affidavits being returned by the Sheriff according to-the terms of the Act, and the case being called up at the regular term of the Court, Counsel for Standly moved to dismiss this-counter affidavit on the ground of its insufficiency, not being in-the terms of said Act. Pending- the discussion on this motion, Counsel for Cardin, the defendant, called the attention of the Court to the affidavit of Lemon Dunn, which had also been filed, and which the Court allowed to be road in connection, with the former one, which is as follows.:
    State or Georgia — Randolph County :
    Personally appeared before me William Mattock, a Justice of the Inferior Court of said county, Lemon Dunn, who,, being duly sworn, deposeth and saith that he is in possession.by his tenant, Charles T. E. Cardin, of lots of land Nos. five- and six, in the seventh district of said county, and the west half of lot No. three hundred and eight, in the sixth district, of said county; and that he has a bona ficle title to said lots-of land. Sworn to and subscribed before me this March 25th, 185 (6) (?) LEMON DUNN.
    William Mattock, J. I. C.
    The Court decided that both affidavits, taken together, were defective and insufficient. Counsel for defendant then asked leave to amend the affidavit of Charles T. E. Cardin, by adding thereto the words, “ That he does, in good faith, claim-;a legal right to the possession of said land, as the tenant of Lemon Dunn.”
    And also, to amend Lemon Dunn’s affidavit by inserting ■therein the words, “ That he does, in good faith, claim a legal ¡Tight to the possession of said land, by and through his ten■ant, Charles T. E. Cardin.” The parties named being in ■Court and ready to swear as proposed. The Court refused this request and passed an order dismissing said counter affidavit upon the ground aforesaid, and requiring the Sheriff to .put the plaintiff in possession of the premises in dispute.
    To which decisions and rulings, the plaintiff in error exceprfced.
    Perkins & Nisbet, for plaintiff in error.
    Douglass & Douglass, for defendant.
   By the Court.

Benning, J.

delivering the opinion.

The Act of 1854, To protect the owners of lands or tenements against intruders, and to provide a remedy for land owners in certain cases,” makes it the duty of the Sheriff, in such a case as the present, to turn the person in possession out of the possession, 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 such land or tenement.” (Acts 1854-’53.)

Cardin was the person in possession, and the Statute -extends to no other than the person in possession. It is not contended by the Counsel for the plaintiff in error, that Car■din’s affidavit, or that Dunn’s, Cardin’s landlord, was such an •affidavit as is thus required. And certainly neither affidavit •was.

Was Cardin’s affidavit amendable under the Amendment .Act- of 1854 ? We think not. That Act does not extend, 'beyond the subject of amending pleadings. (Acts 1854-’48.)

The affidavits in cases like the present, are not what constitutes the pleadings. They constitute a foundation on which pleadings may be raised. It is made the duty of the Sheriff to deposit in the Clerk’s office. When he has done, .this, “an issue may be made up and tried by a Jury.” To make up an issue, there must be allegations by the opposite parties. It is these allegations that, if made, will constitute the pleadings between the parties in a proceeding under this Statute.

We think, therefore, that the several decisions of the Court below were right.  