Taylor v. Smith , 16 Ga. 7 ( 1854 )

By the Court.

Benning, J.

delivering the opinion.

A witness of the defendant’s swore of two witnesses that had been examined by the plaintiff, as follows: “From the knowledge I have of their character in the neighborhood, for truth and veracity, I should weigh their evidence, in a Court of Justice, with a considerable degree of allowance.”

This testimony says, in effect, that the two witnesses bore in their neighborhood, a reputation for truth which was not good.

To rebut it, the plaintiff examined two witnesses, who swore that they were acquainted with the character of the two impeached witnesses, for truth, in the neighborhood in which those witnesses lived, and that from their knowledge thus derived, they would believe those two witnesses on their oath, in a Court of Justice: but these two supporting witnesses also swore that they had never heard any thing for or against the truth of the two impeached witnesses — that they had never heard the question of such truth raised among their neighbors.

The effect of this testimony was certainly, to some extent, to rebut the testimony of the impeaching witnesses. It says at least as much as this: that if the character of tho impeached witnesses was not good, they, the supporting witnesses, had never heard that it was not; and if it were true that it was not, they were such persons as would probably have heard of it::for they swear that they are acquainted with that character, although they never heard it spoken of; meaning, perhaps,.tó have it understood that they derive that acquaintance from the sort of respect and consideration with which those witnesses-were treated by their neighbors.

And certainly the sort of silent respect and consideration with which one is treated and received by those who know him, is some index of what they think of him as a man of veracity. And, indeed, if he is a person whom they think very highly of,' this is about the only index. The character for truth, of such a person, is never discussed — questioned—“spoken of.” To discuss, question, or even, perhaps, to speak of one’s reputation for truth, is to admit that two opinions are possible on the point. Suppose the question were, what was the character of Washington, among his neighbors for truth,, could the answer be^any thing but this ? I never heard it questioned, discussed, spoken of; and yet, I know it to have been the most exalted.

This testimony, then, for the purpose of rebuttal, if for nó other pui-pose, was well received. And whatever rebuts impeaching testimony, may,'of course, be weighed by the Jury,. in. estimating the credibility of the impeached testimony.

[1.] The charge which is assigned as erroneous, was in substance, no more than that the Jury might weigh the testimony for such a purpose; and was, therefore, in the opinion of this - Court, not erroneous.

After the defendants had delivered evidence to the Jury,. they moved to amend their answer, by adding a plea of the • Statute of Limitations. The Court over-ruled the motion,' “ because (in the language of the Court) no cause is shown in excuse of its not being filed before — the testimony on which it'is ■■ sought to be placed, having been in Court for a long while, as • seen from entries on interrogatories.” There is no other reason assigned for the decision. It does not appear that any other existed. Therefore, it does not appear that the plaintiff stated “on oath,” or that his Attorney “ stated in his place,”' that he. would be “ taken by surprise,” and would be “ less prepared for trial in consequence of the amendment,” should the amendment be allowed. For aught that appears to the contrary, the plaintiff, at the time when the motion to file the new plea was made, was as ready to meet that plea as he would or -could have been, had the plea been filed at the earliest moment at which it could be filed. And, therefore, for aught that appears to the contrary, the filing of the pleh (if it had been filed) at that late time, would have done the plaintiff no more harm than would have the filing of it at the earliest possible time. This being so, every reason that exists for allowing the plea to (¡have been pleaded at the earliest time, exists for allowing it to ‘have been pleaded at the late — unless there is some positive • command of the law, which prescribes the one time rather than the other.

Is there any such a command ? That, therefore, is the question.

The fith Common Law Rule of Court is as follows: “ When an appeal is entered, either of the parties litigant may make any amendment of the declaration or answer they may deem necessary. The party amending, shall give notice thereof in writing, accompanied by a copy of the amendment to the adverse party, three months previous to the next term after the appeal; and if the party amending fail to give such notice, and the adverse party will state .on oath, or the Attorney at Law State in his place, that he is taken by surprise, and is less prepared for trial, in consequence of the amendment, the cause .shall be continued at the instance of the amending party.”

By this rule, a defendant may amend hi? answer on the appeal, at any stage of the case before verdict, subject to the contingency of having a continuance charged against him, if he so does. A license so broad as this, is manifestly capable of abuse to the injury of plaintiffs; to the delay of Court business; and to the infliction of unnecessary labor upon Court and Jury.

To prevent such abuse, probably another rule was adopted < — the fifty-third. That, among others, contains the following words: “Exceptions to the declaration or answer shall be taken before the case is submitted to the Jury, either at Common Law or on the appeal — and in no case shall the declaration or answer be amended in matters of substance, after the case hag gone to the Jury, except at the .discretion of the Court, and upon payment of costs.”

By this rule,-after a case has gone to the Jury, whether either side of it can be amended or not, on payment of costs,. is committed to the discretion of the Court. But even when discretionary power is 'given, the intention, it may be assumed is, that the power is at some time to be exercised. And what better time can be • assumed, as one intended, than a time at which the exercise of the power will create no surprise — produce no delay, expense, vexation — do no legal harm to the one side, while it will or may do legal good to the other.

If this be so, then the time when the defendant in this case applied for leave to amend his answer, was a time at which the discretionary power of the Court to allow the amendment, should have been exercised. Eor it does not appear that the amendment, if made, would have surprised the plaintiff, or done him other legal harm, while it does appear that it might have done the defendant some good, as he had testimony which the Jury might have considered supportive of the plea.

[2.] So we think the amendment should have been allowed.

My own opinion is,-that not only should it have been allowed. under these two rules of Court, but also that it should have been, under the Act of 1818, (Pr. Dig. 44-2) of which the first section is as follows: “That in every case where there isa good and legal cause of action plainly and distinctly set forth in the petition, and there is in substance a copy served on the defendant or defendants, or left at their most notorious place of abode, every other objection shall be, on motion, amended without delay or additional costs.” I understand this Act to. apply to the defendant’s.side of a case, as well as to the plaintiffs. The words “ every other objection” is broad enough for that — and the preamble shows the defendant’s side of the case to have been in the mind of the Legislator equally with the plaintiff’s. These words are, in the preamble, “ Parties, Clerks and Sheriffs.”' Not only the omissions of both parties, but those also of “ Clerks and Sheriffs” were in the mind of the Legislator, and were equally provided for in the body of the Act.