Garner v. Hopgood

1 Georgia Decisions 131

Opinion

This Certiorari was filed, for the purpose of correcting certain errors, alleged to have been committed, in a Justice’s Court, in a case, founded on a promissory note, to which defendants had plead duress, usury, &e. The petition states, that on the trial of said case, before the Jury, plaintiff introduced the note in evidence, and closed his testimony. That defendant then examined two or three witnesses, as to the consideration of the note, in support of his plea. After which, he made a motion for a non-suit, upon the ground, that the iwte Jiad not been tendered to him, by the plaintiffs’counsel, as evidence, and that the Court sustained the motion, and awarded a non-suit. These facts are fully sustained, by the Magistrate’s return. If the defendant had any objection, to the note’s being read in evidence, ho should have made the objection, when plaintiff’s couusel offered to read the note, and his having failed to do so was a waiver of his right. It was certainly too late, to raise this objection, and-move for a non-suit, after he had examined his witnesses, in the de-fence. It is, therefore, ordered, that the Certiorari be sustained, and a new trial ordered.