Tomlinson vs. Cox,

will do complete justice. Hodges rs. Waddington, 2 Ventr. 360, Noel rs. Robinson, 1 Vern. 94, S. C. Newman vs. Barton, 2 Vern, 205. Gillespie vs. Alexander, 3 Russ. Ch. Cases, 136, '7. 2 Williams' Exr's, 1041,970, 971. Tripp vs. Talbrid, 1 Hill's Ch. R. S. C. 142. 1 Vern. 162. Corbet et al. vs. Johnson's Heirs, 1 Brockenborough, 77.

Let the judgment be reversed..

No. 18-JARED TOMLINSON, plaintiff' in error, vs. JAMES R. Cox, defendant.

[1.] In all applications for a new trial in the Superior Courts, a brief of the testimony in the cause must be filed by the party applying for such new trial, under the revision and approval of the Court, at the term of the Court at which the application is made, in conformity to the 61st Common Law Rule of Practice, and the fact must be evidenced in writing. [2.] A brief of the testimony which refers to executious, judgments and interrogatories, as being attached, when in fact no such papers are appended, is fatally defective; and the omission cannot be supplied by the certificate of the presiding Judge, that he recognizes such documents as in Court before him, on the final hearing of the motion.

[3.] The best mode of making out the brief of the testimony, is to embody in it an abridged statement of the oral, and a copy of the written evidenec.,

Motion for new trial, in Sumter Superior Court. Decided by Judge WARREN, at November Term, 1849.

When this motion came on to be heard, the claimant moved to dismiss the rule, on the ground that no brief of the testimony in this case was agreed on by counsel, and no approval of the Court was entered on the minutes of the Court, as was required by the 61st Rule of Court, and there was not any written evidence that a brief of the evidence had been filed with the Clerk.

The Court overruled the motion, and ordered a brief of the evidence to be entered, nunc pro tunc, which the Court alleged

Tomlinson vs. Cox.

he remembered to have approved at the last term, and directed to be entered on the minutes. To this decision complainant's counsel excepted.

Claimant farther objected, that the brief of testimony was not sufficiently full and complete; in this, that it referred to testimony of witnesses examined by commission, as the interrogatories of A and B, without giving an abstract of their contents; and, also, in referring to judgments and fi. fas. as appended thereto, without giving any abstract of them, and when, in fact, they were not appended.

The Court overruled the objection and claimant excepted. Other exceptions were filed, not necessary to be stated.

B. HILL, for plaintiff in error.

H. MORGAN, for defendant.

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

[1] In Graddy vs. Hightower, (1 Kelly's R. 255,) this Court held, "That nothing short of a brief of the testimony, approved by the Court, and such approval entered on the minutes, or agreed upon by the parties or their counsel, and such agreement entered on the minutes, at the term at which the rule for a new trial is applied for, will be a compliance with the 61st Rule of Court. This rule requires, that "A brief of the testimony in the cause shall be filed by the party applying for such new trial, under the revision and approral of the Court." Hotchkiss, 951. In Petty and others vs. Mahaffy, (3 Kelly, 217,) and Hartridge vs. Wesson, (4 Kelly, 101,) the same construction was given to this rule.

[2.] Now, it is not pretended that there was any written evidence of any agreement of counsel as to the brief of the testimony in this case, filed at the term when the motion was made for a new trial, or written approval thereof by the Court. Had this been done, and the Clerk neglected to place it upon the minutes, it might have been entered, nunc pro tunc, at the ensuing term. As it is, the objection is fatal.

The brief itself, in the judgment of this Court, is fatally defective. It refers to fi fas. judgments and interrogatories, as being

Griffin vs. Witherspoon.

attached, when, in fact, none such were appended. It is true, that the presiding Judge certifies, that upon the final hearing of the motion, "he recognized these papers as in Court before him." But this does not cure the defect. It will not do to confide such matters even to the memory of the Court. Besides, it is the right of the opposite party to have a perfect brief filed, subject to his inspection, in the interim, in order that he may prepare for the argument.

[3.] We have been requested to suggest, what is the proper mode of making out the brief required by the rule. Perhaps the best plan would be, to embody in it a short or abridged statement of the oral, and a copy of the written testimony. We will not say, nor are we to be understood as deciding, that it will not do to annex the original documents; but these are often the private papers of the party introducing them, and subject to be withdrawn from the office; and inasmuch as this brief becomes a part of the record, it should be preserved in some permanent form.

In Spears vs. Smith, (7 Ga. R. 436,) we held, that it was not necessary that the brief should be entered on the minutes, as was ordered to be done in this case, but that it need be filed only. Let the judgment of the Court below be reversed.

No. 19.-LARKIN GRIFFIN, plaintiff in error, vs. JAMES M. B. WITHERSPOON, defendant.

[1.] Where the Jury found a verdict for a greater amount of damages than was claimed in the plaintiff's declaration, and a motion for a new trial having been made on that ground, the plaintiff entered a remittiter on the record for the excess: Held, that the plaintiff had the right to enter such remittiter, and that a new trial on that ground ought to have been refused.

Case for deceit, in Sumter Superior Court. Tried before Judge WARREN, November Term, 1849.

VOL. VIII 15

Bethune vs. McCrary.

This was an action for deceit, with damages laid at $1000. The Jury found a verdict for the plaintiff for $1000, with interest from 20th October, 1841. Defendant moved for a new trial, onthe ground that the verdict was illegal as to the interest. The plaintiff entered a remittiter for the interest. The Court, notwithstanding, granted a new trial on this ground, and plaintiff excepted.

E. R. BROWN, for plaintiff in error.

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

[1.] The ground taken in the Court below for a new trial was, that the Jury had found a verdict for a greater amount of damages than the plaintiff had alleged in his declaration; whereupon, the plaintiff entered upon the record a remittiter for all the damages found by the Jury, over and above the amount claimed in the declaration. We think the plaintiff had the right to remit the excessive damages found by the Jury, and as that was the only ground taken for a new trial, the motion ought to have been refused. We do not readily perceive the reason or the policy which requires a party to litigate, when he is willing to surrender to his adversary all that he claims. See Tidd's Practice, 806. Let the judgment of the Court below be reversed.

No. 20.-JAMES N. BETHUNE, plaintiff in error, vs. JOHN T. McCRARY, defendant.

[1] Where the value of depreciated bills, at a particular time, is to be proven, the proof should apply, with reasonable certainty, to that time, and sayings of persons, as to the value of the bills, cannot be admitted to prove their value.

[2.] It is error to instruet the Jury as to the law arising from facts which are not proven, and about which there is no evidence.

Bethune vs. McCrary.

[3.] The purchaser of a note after due, from an indorser who has paid it, cannot recover upon the note out of a prior indorser, any more than his vendor paid upon it.

Assumpsit, &c. in Sumter Superior Court. Tried before Judge WARREN, November Term, 1849.

Suit was commenced by Bethune against McCrary, as indorser on a note for $2000, made by John W. Cowart, and payable to the order of M. H. Brown, and indorsed by Brown, John McCrary and Isaac McCrary.

The defendant on the trial proved, that Cowart and Shotwell & Tift, in 1838, bought a steamboat for $12,000. Cowart gave his notes for $6000, and Shotwell & Tift gave their notes for $6000—and all mutually indorsed each others' notes. Subsequently, the Phoenix Bank of Columbus, as the holder of the note now sued on, brought suit against Tift as indorser, who paid off the same in bills of the Phoenix Bank, which were then valued at from 20 to 25 cents in the dollar. Tift then erased the indorsement of Shotwell & Tift, and sold the note to Bethune, without recourse.

Defendant then proved by John S. Haines, that about the time Tift paid off this note, he sent some bills on the Phoenix Bank to an agent in Columbus, who returned them to him as worthless. Also, by Geo. M. Dudley, that in 1844, he showed some of the bills to Robert Poe, who said they were worthless; and, farther, that the bills were valueless in Americus, (the County site of Sumter County.) To this testimony plaintiff objected, as irrelevant and in part hearsay. The objection being overruled, plaintiff excepted.

The Court charged the Jury, that if they believed that Shotwell & Tift received the consideration of the note with Cowart, and indorsed it without a special understanding that they were indorsers merely, they were to be considered as joint makers, and on payment by them, the note was discharged, and there could be no recovery of the prior indorsers. To this charge plaintiff excepted.

The Court farther charged, that Tift and his assignee could recover no more of the prior indorsers than the amount he paid, whether it be in current or uncurrent funds.