Dyson v. Beckam ( 1866 )

Walker, J.

[1.] The interrogatories of certain witnesses were rejected because the jurat was not certified to by the commissioners, The ground of objection was that the names of the commissioners were signed immediately above, and not below the words “ sworn to,” &c. ETo question was made as to the fairness of the testimony; no denial that the statement that the answers were sworn to by the witnesses was made by the commissioners themselves. We apprehend the difficulty arose from the want of experience on the part of the commissioners, who were probably persons not accustomed to the execution of interrogatories. They, however, make the proper certificate; and the fact that it follows, rather than precedes their names, is not sufficient to exclude the testimony.

[2.] Ought the Oourt to have nonsuited the plaintiff? The rule on this subject is, “that if there be any evidence upon which a verdict could be rendered, the case should not be withholden from the jury.” Tyson et. al. vs. Yawn, 15 Ga. R. 493. Was there any evidence in this case upon which a verdict could be rendered ? There is an abundance of proof that ^plaintiff did a considerable amount of work on the land of defendant’s testator, and the only question is whether it was done at his “ instance and request.” Two or three of the witnesses speak of the testator promising to “pay the plaintiff out,” &c., but these promises were made after the work had been done. One witness — Iiinion Strickland — says (I copy from the bill of exceptions) “ that he heard a conversation between plaintiff and said Beckam, soon after plavntiff commenced the improvements, in which Beckam said that he had promised plaintiff, when he came •wpon said lot of land to make the improvements, that he would clear him twenty acres of land; that he found he could not do so ; but instead thereof he would let plaintiff cultivate a part of the Murchison place.” Without deciding whether this was sufficient evidence or not, we think there is evidence upon which a verdict might be rendered, and that, therefore, the plaintiff had a right to have a jury pass upon the merits of his case; and that the Court, in denying him this right, committed error.

Judgment reversed.