Walker v. Griggs , 28 Ga. 552 ( 1859 )

By the Court.

Benning, J.,

delivering the opinion.

Did the court below err in overruling the motion for a new trial ? We think so.

We think that the first ground of the motion was a good ground. The sentence that was excluded from the jury was needed to explain the two sentences next following that sentence. The sentence, therefore, was admissible to explain them, if it was not admissible for any other purpose. Whether it was admissible for the purpose of proving the contents of the letter to which it refers, is a doubtful question. We leave the question undecided; as, by the next trial, plaintiff can have the original letter, or, proof to entitle him to secondary evidence of its contents.

It is true, that there was no evidence to authorize the charge mentioned in the second ground, but, then, the court, in the charge itself, as good as told the jury so. In strictness, however, the charge ought not to have been given.

We rather think the same thing true of the first part of the charge contained in the third ground. The evidence is hardly sufficient to warrant a finding that the note had been paid off".

The latter part of this charge was, we think, authorized by the evidence. It is not certain, from the evidence, (Griggs’ letter,) that Griggs’ promise related to the note sued on. Light, it is probable, would be thrown on this part of the case, if all of the demands of every kind, held by Walker against Griggs, should be put in evidence.

The other grounds turn on the import and value of the evidence. As a new trial will be granted without them, it is best not to decide them.

New trial granted.