Beard v. Simmons , 9 Ga. 4 ( 1850 )

By the Court.

Warner, J.

delivering the opinion.

[1.] The first ground of error alleged against the judgment of the Court below is, in allowing the plaintiff’s declaration to be amended, by averring the new promise of the defendants, so as to take the case out of the Statute of Limitations. According to the practice of the Courts in England, when the notes are barred by the Statute on the face of the declaration, the defendant pleads the Statute of Limitations, if he intends to insist on it as a defence. In order to avoid the effect of a plea, the plaintiff puts in his replication, averring a new promise. In this State, the plaintiff is not allowed to file his replication, inasmuch as special pleading is prohibited, and the parties are at issue when the declaration and answer shall be filed. Amendments, however, are allowed by Statute to be made to the declaration and answer, regulated by our rules of practice, so as to prevent surprise and injustice. The declaration in this case showed a cause of action, and but for the defendant’s plea, availing himself of the Statute of Limitations, the plaintiff would have recovered a verdict. When the defendant manifested his intention to insist on the Statute by his plea, the plaintiff could not reply on the record a new promise, as in England, but he moved the Court to amend his declaration, by alleging a new promise, for which the original indebtedness, as set forth in the declaration, formed the consideration. The amendment was, in our judgment, properly allowed by the Court below, under our Judiciary Act and Rules of Practice.

The general ground of error insisted on, is the admission of the testimony of Lessell, the payee of the notes sued on, to prove the new promise of the maker, and also to prove the consideration for which the notes were given.

We do not think there was any foundation for this objection, inasmuch as the plaintiff had executed a release to the witness from all liability, whatever, on account of the notes. If he was not a competent witness, independent of the release, that made him so. The third ground of error is, that the Court refused to grant a new trial on the ground of newly discovered evidence.

Lessell, the witness, testified that the notes sued on were given in part for property sold at the executor’s sale.

[2.] The basis for the new trial is, that the defendant has recently discovered, from the returns made to the Court of Ordinary, that the property was not sold until after the date of the notes. The testimony of Lessell, taken by commission, had been in the Clerk’s office some six months before the trial, and the newly discovered evidence being matter of record, equally accessible to both parties, the Court below held, that the defendant had not exercised proper diligence in endeavoring to procure it. It may be stated to be an established rale, that a new trial will not be granted on account of evidence discovered after the trial, which, by using due diligence, might have been discovered before. Knox vs. Work, 2 Binney’s Rep. 582.

[3.] Nor will a new trial be granted on the ground of newly discovered evidence, merely to give the party an opportunity to impeach the credit of a witness sworn at the trial. Bunn vs. Hoyt, 3 John. Rep. 255. Durgee vs. Dennison, 5 John. Rep. 248. The motion for a new trial was properly overruled, on the ground of newly discovered evidence. The next ground of error alleged upon the record is, to the charge of the Court to the Jury.

We have examined the charge of the Court as applicable to the state of facts contained in the record, especially the date of the credits made upon the notes, as well as the time at which the new promise was made, and we are of the opinion the Court did not err in its charge to the Jury, but that the law"of the case was properly stated by the Court, and that there was no error on the part of the Court in refusing to charge as requested by defendant. The evidence clearly shows a new promise, on the part of the defendant, to pay the notes before the Statute had interposed its bar.

Let the judgment of the Court below be affirmed.