24 Ga. 211 | Ga. | 1858
By the Court. delivering the opinion.
Both parties except to the decision of the Court below on the motion for a new trial. The Court granted a new trial
The defendant’s counsel having moved to dismiss the appeal entered by the plaintiff in the cause, on the ground, that the issue tried by the jury was a collateral issue, and no appeal could be taken from a verdict rendered on such issue, and the Court having refused the motion, the refusal of the motion was made a ground for the new trial.
After the evidence was closed, defendant’s counsel insisted, that he was entitled to open and conclude the argument of the cause before the jury. The Court ruled otherwise, and this ruling of the Court was also incorporated amongst the grounds taken in the motion for a new trial. The Court below overruled both grounds.
The plaintiff brings up the same cause, and assigns error on the rulings and decisions of the Court during the progress of the trial.
The plaintiff was entitled to the security which was to be substituted for the mortgage, before he could be compelled to relinquish the security he'had.
A tender bars the action, but not the right; and upon being pleaded, and proof of it being made by the defendant on the trial, the plaintiff would be compelled to pay the costs, provided-he did at Court what he had offered to do, and which the plaintiff had refused, and that amounted to a compliance’with his undertaking in all respects.
We overrule the other points made by the plaintiff in error in this case. We reverse the judgment of the Court upon the points indicated, but inasmuch as it might further the ends of justice to allow the case to be re-tried, we so order.
Judgment reversed.