Freeman vs. Norwell. It does not appear that an affidavit was made by the plaintiff requiring the defendant to enter into a recognizance with surety for the forth-coming of the negroes to answer any judgment, execution or decree, and that a process or order was given to the Sheriff requiring him to take it, or that it was in consequence of the defendant's failure to enter into such recognizance, that the negroes were taken from his possession and placed in the possession of the plaintiff. If we are to arrive at the conclusion that such was the fact, we must do it by argument and inference, 'for we are not informed of it by averments in the declaration. It was asked in argument if the party is to be left without a remedy? It is sufficient for me to say that in my judgment; he is not entitled to the remedy sought in the record, according to the facts which the record presents. But I will say it may be possible, that if the defendant had applied to the Court below, upon the dismissal of the plaintiff's action on his own motion, it would have ordered the plaintiff to restore to the defendant the slaves sued for, if they were indeed obtained from him in the manner alleged in the argument, but which does not appear in the record. The Court might have held, on such an application, that the plaintiff could not be allowed to use its process to obtain surreptitiously, the possession of property, without a trial of the title, which it was the main object of the statute, under which the proceeding was had, to prevent. If the Court had so ordered, that order might have been held a sufficient judgment under the terms of the bond for the foundation of a suit, if the negroes had not been produced to answer it. I state these things supposititiously, because the case does not call for a decision upon the matters suggested. But a mere order or judgment to restore the property, would not afford the party a full or complete remedy for the injury done him, for he would be entitled to the hire. Hence perhaps, the ancient writ of restitution, awarded by the Court on the reversal of a judgment, might furnish a guide for a proceeding Freeman vs. Norwell. which would enable the party to obtain his rights. By that writ the party was not in all cases restored to his property, for it may have been sold to a third person under a writ of fieri facias, but in that case he would be entitled to the money for which it was sold; and if the property had been delivered to the plaintiff upon an elegit, the defendant would be entitled to a restitution of the property and the profits made during the possession of it by the plaintiff. The writ of restitution directs an enquiry into the profits made by the plaintiff from the property. Cro. Jac. 246, 698. But I apprehend that, if the plaintiff had in such case in England, entered into a bond to account for profits, ascertained upon enquiry under a writ of restitution, an English Court would not hold that there was a breach of the bond, if no writ of restitution had been awarded. Is it not probable that the Legislature may have intended, that in case where bail might be required, the defendant, who, from his inability to give security, should be compelled to deliver the property to the plaintiff, who should give a like bond unto that required of him, should become the plaintiff in the action for the trial of the title? Under such construction, no difficulty could arise as to the remedy upon the bond. I regret to differ with my brethren in their views of the party's liability, but as I am clearly of the opinion that the plaintiff's declaration shows no breach of the condition of the defendant's bond, and that is made the foundation of the action, I think the judgment of the Court below ought to be reversed. CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF THE STATE OF GEORGIA, AT SAVANNAH, JUNE TERM, 1858. Present JOSEPH H LUMPKIN, CHARLES. J. McDONALD, Judges. SAMUEL WARNER, plaintiff in error, vs. JOSEPH A. GRAVES, et al., defendants in error. [1.] A plaintiff in equity being allowed by the Court to dismiss his bill without prejudice, may move to re-instate his cause. [2] The cause should be re-instated in Court if the necessity for its dismissal was superinduced by the error of the Court. [3.] When the bill seeks to set aside a deed, and prays that the defendant may be compelled to produce it in Court, and deliver it up to be cancelled, and the plaintiff annexes a copy to his bill, which defendants admit to be a true copy, and the defen lants, moreover, file a cross bill, and attach a copy of the same deed as an exhibit, the Court, on motion of plaintiff, may and ought to compel the defendants, at the hearing, to produce the original deed, to be read in evidence. In equity, from Burke county. Decided by Judge HOLT, April Term, 1858. VOL. XXV.-24 Warner vs. Graves et al. This cause, wherein Samuel Warner was complainant, and Joseph A. Graves and Anderson P. Longstreet were defendants, and in which cause the said Joseph A. and Anderson P. had filed their cross bill, came on for trial upon appeal on the bill and cross bill; and the said parties being at issue upon a special jury, Warner moved the Court to compel the said Joseph A. and Anderson P. to deliver in Court, to be read in evidence to the jury, two certain deeds, copies of which had been made exhibits to the original bill, and which were charged as having been obtained through fraud, and were prayed to be cancelled. Which motion was resisted by the counsel for the said Joseph A. and Anderson P., and overruled by the Court, and to which ruling and decision of the Court the counsel of the said Samuel Warner excepted. And in the further progress of the trial of said cause, the said Samuel, by his counsel, moved the Court to be allowed to read in evidence before the jury, the copies of said deeds, which were made exhibits to said original bill, and which defendants, in their answers, had admitted as being true copies of the originals in their possession, which latter motion was likewise resisted by the counsel for said Joseph A., and Anderson P., and overruled by the Court, the said Samuel, by his counsel, excepting. Upon the said rulings and decisions by the Court, the said Samuel, by his counsel, moved the Court for leave to dismiss his said cause without prejudice, which the Court allowed, and the cause was withdrawn from the jury and dismissed accordingly. During the same term of the Court, the said Samuel Warner, by his counsel, moved the Court to re-instate said cause on the following grounds: 1st. Because the Court refused the motion of complainants, that defendants deliver into Court the original deeds, called for in the bill, and of which defendants admitted the exhibits by their auswers to be true copies. 2d. Because the Court refused to allow complainants to |