Wilkinson v. Davis

34 Ga. 549

Opinion

Harris, J.

The defendant below, by a cross-interrogatory propounded to Mrs. Johns, a witness for plaintiff to prove an admission of indebtedness by Ileisler on the morning of the day he was killed, sought to lay a foundation, so as to call a witness to discredit her. ’ It was not done in accordance with the rule laid down many years ago, in a case determined at Talbotton, and which rule has been repeatedly reaffirmed. As the cross-interrogatory was not in conformity to the rule on this subject, the circuit Judge erred in allowing Gill to testify as to her conversation with him.

The record shows that the defendant relied on the plea of payment. Two witnesses testify as to settlements at different times; yet, whether there was a payment at all — a payment in part or in full, — does not appear. Payment and settlement are by no means synonymous.

As this ease is sent back for a re-hearing, to put the matter beyond conjecture, the testimony of the witnesses who were present at any settlement ought to be re-taken; and they should be so interrogated as to draw out what occurred.