Brown & Bowen vs. Robinson.

BROWN & BOWEN, plaintiffs in error, vs. N. M. ROBINSON, defendant in error.

If no objection is made to the admission of illegal evidence, its admission will not be ground for a new trial.

New trial, from Heard county. Decided by Judge HAMMOND, August Term, 1857.

Brown & Bowen brought an action in a Justice Court against Robinson on an open account for $28 75. The Court gave judgment for the plaintiff for the full amount. The defendant appealed. When the case came on for hearing, upon the appeal, the defendant did not appear. Plaintiff's counsel read an affidavit made by Bowen, proving two of the items in the account, amounting to $4 50. This affidavit was made in Coweta county, under the provisions of the Act of 1827, which provides that when the debtor removes or resides out of the county where the debt was contracted, the creditor may prove the debt by affidavit.

The jury found for the plaintiff. The defendant carried the case by certiorari to the Superior Court, assigning that the Justices' Court erred in allowing the plaintiffs to go to trial, there being an agreement between the parties to continue the case in the absence of either party; that the jury erred in returning a verdict for the plaintiff, the affidavit of Brown not being within the terms of the statute; and because the evidence was not sufficient to warrant the verdict. The Court granted a new trial in the Justices' Court on the ground that it did not appear that the case came within the terms of the statute of 1827. And counsel for defendants in certiorari excepted.

OLIVER & FEATHERSTONE, for the plaintiffs in error.

ROBINSON, contra.

Brown & Bowen vs. Robinson.

By the Court.-BENNING, J. delivering the opinion.

The question is, whether the Court below was right in ordering a new trial in the Justices' Court.

The ground on which that order was put, was, that the affidavit of Bowen, one of the plaintiffs, proving the first and last items in the account, the two amounting to $4 50, was not admissible as evidence.

But, first, the admission of the affidavit was not objected to by Robinson, the defendant, and the admission of illegal evidence is no ground for a new trial, when no objection is made to the admission of it. Harrison vs. Young, 9 Ga.

359.

Secondly, it is not clear, by any means, that the admission of the affidavit was illegal. The affidavit was, to prove two items (out of a number) in an account. The statute says, that such an affidavit may be used for such a purpose, in the case in which the party contracting the account removes, or resides, out of the county in which the account was contracted; the statute also says, that "if the defendant will make an affidavit" "denying the justice" "of the account, the said Court shall not give judgment for so much thereof as may be so traversed or controverted, unless supported by other proof." Cobb, 649.

Now if the account was contracted in Coweta, (the suit being in Heard) the admission of the affidavit was legal.

Are we not bound to presume that the account was contracted in Coweta? Why was not the affidavit objected to? Did the defendant know that the account was contracted in Coweta, and that on the making of such an objection, that fact would be proved by the plaintiffs? What other reason is supposable? especially, seeing that the venue put, both to the account, and to the affidavit, is of Coweta county?

Thirdly, even if the objection to the affidavit was good, and was now available, is the case not one in which the verXXV.-10

Turner et al. vs. The State.

dict ought, for another reason, not to be disturbed? The defendant put in a plea, in which he denied the justice of every item in the account, these two excepted; and as to these two, he was silent. Is not this an implied admission of the justice of these two items? At least, may we not hold it so after verdict? The other items were proved in an unexceptionable manner.

Upon the whole, we think that the Court erred in sustaining the certiorari.

Judgment reversed.

MATHIAS TURNER, SEN., and others, plaintiffs in error, vs. THE STATE OF GEORGIA, defendant in error.

The Solicitor General moved to continue, saying, that the State was not ready. The Court granted the motion.

Held, That as an abuse of discretion does not here affirmatively appear, this Court would not interfere with the judgment, if it could;—

And that, as it could not do so if it would, the case is one that it ought not to entertain.

Murder and continuance, from Cass county, decided by Judge TRIPPE, September Term, 1857.

The plaintiffs in error were indicted for murder. When the case came on for trial in the Court below, and the prisoners had announced themselves ready for trial, the Solicitor General stated that the State was not ready for trial, and moved the Court to continue the case without making any other showing for the continuance.

The Court sustained the motion and continued the case and the prisoners excepted and filed their bill of exceptions saying, that the Court erred in continuing the case, and in

Turner et al. vs. The State.

ruling that the State was not required to make a showing for a continuance in a case charging the defendants with murder.

MILNER, PARROTT, CHISOLM & WADDELL, for plaintiffs in

error.

SOLICITOR GENERAL, Contra.

By the Court.-BENNING J. delivering the opinion.

Continuances, being within the discretion of the Court, the onus is upon the party objecting to a continuance, to show, that, in granting the continuance, the Court abused its discretion. Presumption will be in favor of the continu

ance.

In this case, the Solicitor General, said "that the State was not ready for trial." No question was asked him. There may have been a good reason why the State was not ready; and a reason within the knowledge of the Court. It is, therefore, to be presumed that there was,-especially, as the Solicitor General was a public officer, on whom is imposed the duty of being diligent in preparing such cases for trial; and it is prima facia to be presumed of every public officer, that he does his duty.

Besides, the Solicitor General has the unlimited power of "nol prossing" the bill of indictment, and then of preferring it again. The exercise of such a power, is but a round-about way of continuing the case. Hence, in some circuits, perhaps, in many, the Solicitor General is allowed to continue the case, at his mere pleasure.

These are reasons why this Court would not interfere with this continuance, if it could. But it could not, if it would. The judgment granting a continuance, is in its own nature one which, even if wrong, is beyond this Court's power of correction. And this Court, is only for the correction of er

rors.

Thomas vs. Ellis.

an attachment had been sued out against one Bryson, and garnishment been issued against him, Ellis, upon which judgment had been rendered against him in Tennessee. The verdict was for the plaintiff, and defendant, Ellis, filed his petition for a writ of certiorari. In the petition the above facts were stated, and that at the time the notes were traded to Thomas by Bryson, the garnishment was known to him.

This petition was answered, and when it came on to be heard, a motion was made to dismiss the certiorari, on the ground that there was no error set out in the petition.

This motion was overruled by the Court, and the certiorari sustained, and a new trial ordered; and to these decisions. the defendant excepted.

MARTIN, for plaintiff in error.

CHASTAIN; and UNDERWOOD, for defendant in error.

By the Court.-BENNING J. delivering the opinion.

It seems that Bryson held notes on Ellis, to the amount of $120. That Bryson was indebted to McCoy, that McCoy sued Bryson on this indebtedness in Tennessee, and garnisheed Ellis, that judgment was rendered against Ellis, as garnishee, for $40 $5, on which Ellis paid $20; that while the garnishment was pending, Bryson traded the notes he held on Ellis, or at least two of them, amounting to $50, to Thomas, who had notice of the garnishment; that, afterwards, Thomas sued Ellis on these two notes, and Ellis pleaded the foregoing facts, and proved them by the depositions of Bryson and those of Corinth, the magistrate who gave the judgment in Tennessee; that, notwithstanding the plea and proof, the jury found for Thomas $50; that Ellis petitioned for a certiorari and obtained it, and that it was answered by the Justice of the Peace.