McCurdy v. Terry , 33 Ga. 49 ( 1861 )

By the, Court —

Lumpkin, J., delivering the opinion.

Samuel Rawlins sold to William Terry, a negro man named Harry, for which he gave him sixteen fifty dollar •notes. Rawlins transferred the notes to David R. McCurdy," who brought this action upon them. The defendant pleaded a failure of consideration, and knowledge of the fact by the plaintiff before he became the holder of the notes. In other words, that he was not a bona fide holder. The plaintiff read the notes to the jury on the trial, and closed his case. The defendant proposed offering evidence to show that the consideration of the notes sued on had failed, which was objected to, until notice was brought home to the plaintiff. The objection was overruled by the Court, and we think, properly. It has been again and again ruled by this and all Courts, that a party, plaintiff or defendant, may begin at either end of his testimony, upon the assurance of counsel, that he expected to supply all the links in the testimony necessary to make out his case.

The defendant offered to read the deposition of Eobert Watson, to certain interrogatives, which was objected to on the ground that the interrogatories had been once answered, and the answers suppressed by order of the Court, and that they had been, after that, taken from the Clerk’s office and re-executed before'different commissioners, without leave of the Court, or notice to the other party. What of that ? The ease was submitted to the jury, and the statute is imperative that, that being the case, the interrogatories could only be objected to on the ground of irrelevancy. We must presume that they were in the office in time to make the objection.

We cannot see the point of the objection to the reading of the receipt for eight hundred dollars paid by Terry to Eawlins, for the negro. To proof of the request by Eawlins, to Cockerell, to bring old man Terry over to attend a “big hard-shell meeting” which never eame off, plaintiff objected, and we think he was right in trying to exclude this testimony, as it was the commencement of this nefarious fraud. But the Court, for that reason, was equally right in overruling the objection. Plaintiff being surprised by the testimony of Stephen McGinness, moved to continue the case, to prove the general bad character of the witness, which probably he could have done, the name being suggestive. But this would have constituted no ground for a new trial, after verdict, and we think it was not sufficient to continue the case. Samuel Eawlins was properly excluded as a witness. If the notes were lost by McCurdy, on account of the failure of consideration, Eawlins was clearly liable to make good the loss. Neither was it competent for the attorney to release him. It does not come within the scope of his employment. Neither could the case be continued to get McCurdy there* for that purpose. Eor counsel had talked the matter over with his client, and he gave him verbal authority to execute a release. He was apprised of theliecessity of it.

As to the charge requested of the Court, it was not war-rented by the evidence. Besides'it was not a matter of law. The jury might, had they seen fit, have believed the testimony of the physician, in opposition to that of the two witnesses to the transaction, without violating any principle or rule of law.

As to the newly- discovered evidence, in addition to the objection, that it was cumulative merely, the Court is satisfied, that it could not change the verdict, and that it ought not to have that effect. The testimony unmistakably establishes, that not only a most wicked fraud was practiced by Rawlins on Terry, but that he still is the owner of Terry’s notes, the transfer to McCurdy being colorable only.

Let the judgment be affirmed.