32 Ga. 173 | Ga. | 1861
By the Court.
J., delivering the opinion.
Two questions are made by the record in this case: '
1. Whether the interrogatories of the witness, William McKinley, were admissible as evidence ?
2. Whether there was sufficient evidence of a consideration in the notes which were the foundation of the suits in the Justice’s Court, to authorize a recovery on them by the plaintiff?
(1.) We think the interrogatories were admissible as evidence. The objection to them is, that the witness, McKin-. ley, was the attorney of Morris, and that his statements, or evidence, is in conflict with the Act of” 21st February, 1850, “ To regulate the testimony of Attorneys at Law.” The record does not support the objection. It does not appear that the witness was the attorney of Morris, or that the facts sworn to by him were acquired during the existence and by reason of that relation, all of which is necessary to exclude the testimony under that Act. As much ivas said in the argument as to the manner of this witness, we are constrained
(2.) As to the other’question: Was there sufficient evidence of a consideration in the notes before the jury to require them to find for the plaintiff? Or, to state the question more exactly: Was there sufficient evidence of a want of consideration in the notes, to justify the finding as made? And to this, we reply, that there was not. The only evidence offered as to the consideration of the notes, was that of the plaintiff, Morris, given in reply to interrogatories sued out for him specially, on the application of the defendants in the Justice’s Court. The witness, McKinley, knew nothing of the giving of the notes, or of their consideration • he testifies to certain negbtiations by Morris for the purchase of the lands and negroes of Mrs. Montgomery, that occurred in Milledgeville, on the first Tuesday in January, 1860, and the facts that transpired at that time and place, in respect to the intended trade, within his knowledge. The notes were not given at that time, but subsequently, on the 17th day of March, 1860. Hence, his testimony can have no weight whatever, to overcome the legal presumption in favor of the fairness and sufficiency of the consideration of the notes, that arises upon the face of the papers themselves. From the answers of Morris, we learn that Morris agreed, on the
3. Putting the case exclusively on this footing, the promise was binding on the maker, for that is directly within the rule laid down by this Court, in Ham vs. Hamilton, 29 Ga., 41— that is, “ that parties may settle frauds as well as anything else, if they act with knowledge of the facts; and such a settlement is as effectual, when made by the parties, as when made by the Courts;” and this, we think, an express adjudication of the main question in this case, and conclusive.
Judgment, affirmed.