Rhame v. Bower , 27 Ga. 408 ( 1859 )

By the Court.

Benning J.

delivering the opinion.

Was the Court below right, in admitting the bond to the jury? The objection to the Court’s doing so,was,that there was no proof, that the bond was the bond of the plaintiff.

The question, then, is, was there proof, that the bond was the bond of the plaintiff? And, if it was not, was any such proof needed, to make the bond admissible as evidence ?

The note on which the action was founded, and which the plaintiff had read to the jury, had, on its face, a reference to some bond made by the plaintiff to the defendant. If this was that bond, then the note, with the fact of its admission to the jury, proved it, the bond of the plaintiff. Was there enough on the face of the note, to show, that this was that bond ?

We think, that, prima facie, there was. There were many particulars on the face of the note, with which the bond agreed, not a particular from which it differed.

Therefore, we think, that the Court was right, in admitting the bond to the jury.

The Court, perhaps, put its judgment, on the proviso in the :9th section of the Judiciary Act of 1799; a proviso in these words: “ That no person shall be permitted to deny any

deed, bond,bill, single or penal note, draft, receipt, or order, unless he, she or they, shall make affidavit of the truth of such anstver, at the time of filing the same.” Perhaps this may be, a sufficient ground, but we are not, as yet, prepared Éo say so. The words seem to be confined, to the case of a defendant. It is true, we believe, that, in cases in which, a note or other writing has been pleaded as a set-off, it has been held, that the defendant need not prove the note or other writing, unless it is denied by the plaintiff. But this is ¡not conclusive; for a plea of 'set-off is, substantially, a cross action, in which, the plaintiff becomes defendant, and the defendant, plaintiff.

Our affirmance, then, is placed on the first ground.

Judgment affirmed.

McDonald J. absent.