Executors of Riggins v. Brown , 12 Ga. 271 ( 1852 )

By the Court.

Nisbet, J.

delivering the opinion.

[1.] The exceptions to the answer are part of the pleadings in the case; and as pleadings, there is no reason why they should not be read to the Jury, with the other pleadings.

[2.] The Sheriff’s opinion about the sufficiency of Griffin’s property to pay the debt, was accompanied by the statement of facts upon which that opinion was founded, and for that reason admissible.

[3.] McDowell’s testimony was well admitted. The fact that he was security for the complainant on another debt, is not such an interest as will exclude him. He had no direct and immediate interest in the event of this suit. His interest was too remote to disqualify.

[4.] What he had sworn on a former trial,it seems, was taken down in a brief of the testimony, upon an application for a new trial. Being dead, this brief was read as evidence of what he had previously sworn. It may be a question whether such a brief, although agreed upon by counsel, or certified by the Court, can be read as the testimony formerly given in, by a witness now dead.

A witness, however, was called in this case, who swore that the brief contained the evidence, as McDowell gave it. So it was properly read as evidence.

The rules against the Sheriff were read a.s„ part of the record in the case, showing the action of the Court in relation to the fund in controversy. We see no objection to this.

[5.] The exemplification from Troup County, was not the record of a suit between the same parties, and therefore irrelevant and properly rejected ; and if the record was inadmissible, Mr. Warner’s evidence touching that record’s contents, was also inadmissible.

[6.] It is not necessary to the discharge of a surety on account of indulgence given by the creditor to the principal, that the surety should show notice to the creditor of his dissent to the indulgence. The act of the creditor discharges the surety, without any act of dissent on the part of the surety. The surety stands upon his legal rights, and the creditor must look to his own acts, and their legal consequences. The Court therefore did not err in refusing to charge that such notice was necessary.

If Brown, the complainant, was only security on the second note, and the indulgence as charged is proven, he is entitled to recover. He avers that he was not interested in the consideration of the first note, in lieu of which the second was given, and seeks to show thereby, that he was only security to this second note. But he is not held, because of that averment, to prove his suretyship in no other way. If he was surety only to the second note, his case is, pro tanto, made out, no matter how he proves it. So the Court was right in refusing to charge, that unless that allegation was proven, he could not recover.

[7.] The Court read to the Jury the decision of the Supreme Court when this cause was before it on a former writ of error, and it is excepted that he did not explain to the Jury, that that decision was made upon an assumed state of facts. We find that the Court read the decision of the Supreme Court, for the purpose of charging them what principles of law governed the cause, and that.he applied fairly those principles to the facts of the case, as it there stood, for their consideration. This was all right.

[8.] As to the interest. The fund had been paid to the defendant, upon execution against the complainant and others, and this bill was filed to recover it back, upon the ground that it was illegally paid over, inasmuch as the complainant, who had paid it as security, ha'd been discharged by the acts of the defendant, who. was the plaintiffin that execution.

The Court allowed interest to the complainant from the time that defendant or his counsel received it. The payment and the entries on the execution-, liquidated the claim, and it bore interest rightfully from that time.

The Court was correct when he told the Jury that Riggins did not positively deny the suretyship of the complainant on the note; for such we find to be the fact. He denies that the note or the judgment exhibits him as surety; but does not positively say, that he was not in fact a surety on the contract. Besides, the Judge left, after all, the consideration of the fact of the denial of the suretyship to the Jury, upon the answer and the evidence.' Nor did the Court err in declining to instruct the Jury, that if Brown assented to the indulgence, he was not discharged. The defendant, Riggins, denies that any indulgence was given, and, there is no evidence of Brown’s consent. There was therefore no issue or evidence which called for any such instruction. In laying down the law, as to what would discharge a surety, moreover, the Judge expounded the rule to them fully and clearly.

[9.] The brief of the testimony -which went out with the Jury, was that which contained the testimony of McDowell, given in on a former trial, and which was proven by a witness to contain truly what he had sworn. No part of it was read as evidence, but that which contained his testimony — that was read to the Jury, and they were at the time instructed by the Court, that none but that was in evidence. Two of the Jurors swore, that in making up their verdict, the Jury did not regard this brief of evidence, and one, that it was not read at all in the box. Under these circumstances we do not think the sending out of this paper with the Jury, although irr.egular, sufficient ground for a new trial.

[10.] As to the'separation of the Jury, it was allowed by the Court, in the presence of the counsel, and no objection was made — it was therefore with their implied assent. There is no evidence of any approaches or other attempts to influence their verdict, or of any improper conduct on their part. In a civil cause, wfe do not feel at liberty to grant a new trial on this ground.

[11.] We hold that a rule for a new trial, cannot be amended by the addition of new grounds, after it is filed. The party could not therefore continue, with a view to such amendment.

Let the judgment be affirmed.