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U.S. Supreme Court

Doe on the Demise of Elmore v. Grymes, 26 U.S. 1 Pet. 469 469 (1828)

Doe on the Demise of Elmore v. Grymes

26 U.S. (1 Pet.) 469


The courts of the United States have no authority to order a peremptory nonsuit against the will of the plaintiff on the trial of a cause before a jury. The plaintiff might agree to a nonsuit, but if he does not so choose, the court cannot compel him to submit to it.

When the state of the record did not show a judgment of nonsuit to have been entered, although the bill of exceptions states the fact, the plaintiff may apply for a certiorari to bring up a perfect record or dismiss the writ of error and proceed de novo.

An action of ejectment was instituted in the Circuit Court of the United States for the District of Georgia for the recovery of 287 1/2 acres of land, in which the plaintiffs claimed title as follows: a grant from the State of Georgia to Samuel Alexander and a deed from John Cessna, styling himself "Sheriff of Greene County in the State of Georgia," purporting to convey to Buckner Harris by virtue of a sale under an execution against Herod Gibbs,

"two hundred and eighty-seven and a half acres of land in said county on Little Beaver Dam, on the waters of Richland Creek, and bounded on Academy lands, and land belonging to William Alexander, which land was formerly the property of Samuel Alexander,"

a deed from Buckner Harris to Ezekiel E. Park for a tract of land

"containing two hundred and eighty-seven and a half acres in the County of Greene and State of Georgia on the Little Beaver Dam of Richland Creek, being an equal half of the double bounty of land granted to Samuel Alexander adjoining Academy lands."

The plaintiff then introduced a witness who testified that "Ezekiel Park was in possession of a tract of land lying in Greene County, usually called Park's Old Mill Tract, on Beaver Dam Creek, for about twenty years." He then produced a deed from Ezekiel E. Park to John A. Elmore, for a tract of land

"in the County of Greene and State of Georgia on the Little Beaver Dam Creek, or Fork of Richland Creek, being one equal half of a double bounty tract, originally granted to Samuel Alexander, adjoining lands belonging to the university, being the same originally sold and conveyed to Herod Gibbs by the grantee on 14 March, 1790."

He then exhibited a deposition of the county surveyor stating that he had made a resurvey of the premises in dispute agreeably to a plot annexed to his deposition, which corresponded in its outlines with that annexed to the original grant, "completely chanroblesvirtualawlibrary

Page 26 U. S. 470

covering the premises in dispute," which he designated on the plat.

The plaintiff then called a witness who testified that W. A. Grymes was in possession of the premises at the commencement of the action, and then closed his testimony.

The defendant's counsel thereupon moved for a nonsuit on the following grounds:

1st. Because the plaintiff had failed to make out his title by the documentary evidence on which he rested his case.

2d. Because there was no sufficient evidence of possession to give a title under and by force of the statute of limitations of Georgia.

The circuit court ordered a nonsuit to be entered against the consent of the plaintiff, and a writ of error was prosecuted by him and the cause brought before this Court. chanroblesvirtualawlibrary

Page 26 U. S. 471

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