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The Mayor, etc. of Gainesville vs. Caldwell.

The position of the

plification to be read to them. movant on this ground of the motion for a new trial is, that the court should have heard the testimony and passed upon the competency of the witness. It seems that Turner, after being examined as a witness in behalf of the plaintiff below, was found to be a lunatic or insane, and was committed to the lunatic asylum of South Carolina, the State of his residence. Upon the offer to read his testimony as taken by interrogatories, evidence taken from other witnesses by interrogatories, pro and con, was before the court, and it was insisted that the court should look into this testimony and decide whether the witness was sane or insane at the time he was examined by the commissioners to take his interrogatories. The court declined to determine the question affirmatively or negatively as to whether he was sane or not, but submitted all the evidence to the jury with proper instructions, we may assume, with reference to considering or not considering the evidence according as they found that he was sane or insane at the time of his examination. We think this was right. He having been examined under a commission issuing from the court, the presumption is that the commissioners would not have examined him unless he had been sane at the time of the examination. We have a case (Formby vs. Wood, 19 Ga. 581,) in which a person, who by his guardian had sued as a lunatic, entered an appeal; the case having been decided against the guardian, the lunatic himself came in and entered an appeal, and in doing so he filed a pauper affidavit. The question came up afterwards on a motion to dismiss the appeal on the ground that the affidavit had been made by the lunatic and the appeal entered by him instead of by the guardian. This court held that prima facie the lunatic was competent to take the oath and to enter the appeal, and the motion to dis

The Mayor, etc. of Gainesville rs. Caldwell.

miss it was denied. Here we have the case of commissioners acting under the authority of the court, having examined this person as a witness. The testimony was returned as duly taken, and the question came up as to whether the witness was competent to be sworn as a witness. Prima facie he was competent, because he had been sworn by persons properly appointed by authority of the court to administer the oath. He had been sworn and examined, and therefore his evidence was properly submitted to the jury, and together with it all the evidence on both sides touching upon the question of the witness's sanity or insanity. This testimony included the evidence of one of the commissioners, who testified that the witness was sane, and was careful and rational in making his answers to the interrogatories. We think that if it was the duty of the court to determine prima facie upon the competency of the witness in regard to his sanity or insanity, the mere fact that he had been examined as a witness by commissioners under the commission, was enough to justify the court in allowing the evidence to be read and to submit that, together with all the testimony touching the sanity or insanity of the witness, to the jury for them to deal with.

5. Another ground of the motion for a new trial is, that the court erred in charging that "ordinary care and diligence is that care and diligence which a sensible, prudent man gives to his own business; extraordinary care and diligence is that sort of care which a very prudent man gives to his own business as enjoined by obligation." The point of objection here is, that the court ought not to have said anything about extraordinary care and diligence; because this was not a case that involved that degree of care and diligence. But it is evident that the court, if it it did say what is imputed, (and it is somewhat doubtful, under the authentication

Jaques vs. Stewart.

of the grounds of the motion for a new trial, whether the court said it,) went into extraordinary care merely by way of contrasting ordinary with extraordinary care, and to enable the jury to fully understand what was meant by ordinary care. So we think there was no

error.

6. Because the court allowed plaintiff's counsel to ask witnesses as to the condition of other awnings in the city. These grounds of the motion were approved with certain explanations. It seems that the defendant brought before the court and jury the matter of other awnings, by an examination of some witness in the course of the trial; and the plaintiff was simply allowed to follow up that line of investigation after the defendant had entered upon it. It is very likely that this evidence was irrelevant; and the ground of objection was irrelevancy; but it was simply the following up by the plaintiff of irrelevant evidence brought in by the defendant; but at all events, whether the evidence was admissible or inadmissible upon any ground, it was not sufficiently material to warrant us in overruling the judgment of the court denying the motion for a new trial. There is not the least probability that it misled the jury.

Judgment affirmed.

JAQUES VS. STEWART.

1. Whenever a plaintiff seeks to show title in himself by deed or other writing, the defendant has a right to attack the instrument and show that it is not a title, and that it is void for usury or other cause; and he can do this without filing a plea to that effect. Especially is this true where the instrument relied on is not set out or mentioned in the declaration, and the defendant could not know or anticipate by what means plaintif expected to prove his title. 2. If plaintiff in a trover suit elect to take the value of the property

Jaques vs. Stewart.

and the hire thereof, he must prove the value at the time of the conversion, and not afterwards, and prove the value of the hire. If he elects to take the highest value of the property at any time between the conversion and the trial, and goes into proof of the value after the conversion and up to the time of the trial, then he is not entitled to hire or to interest. It was error to charge that the plaintiff was entitled not only to the highest value of the property from the time of conversion up to trial, but also to the hire.

May 28, 1888.

Defence. Practice. Pleadings. Measure of damages. Before Judge IIARRIS. City court of Macon. September term, 1887.

Reported in the decision.

A. PROUDFIT, for plaintiff in error.

HILL & HARRIS, contra.

SIMMONS, Justice.

Stewart brought an action of trover against Jaques for the recovery of two mules. Upon the trial of the case, the jury found for the plaintiff. A motion for new trial was made, upon the several grounds stated therein, which was overruled by the court, and the defendant excepted. The 2d, 3d and 7th grounds of the motion are all that we consider it necessary to notice in this case. The 2d and 3d grounds are, in substance, that the court refused to permit the defendant to show by the plaintiff and his books, that there was usury in the bill of sale which the plaintiff relied on as his title. The 7th is, because the court instructed the jury that they could find the highest proved value of the mules between the conversion and the trial, and that they might allow hire also.

1. We think the court erred in refusing to grant a new trial upon these grounds. In order for the plaintiff

Jaques vs. Stewart.

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to recover in trover, he must show title to the property sued for. Stewart attempted to do this by introducing to the jury a bill of sale made by Gordon to him to the mules in controversy. The defendant sought to attack this title by showing that it was made by Gordon to Stewart as security for a debt, and was tainted with usury. The court refused to allow him to do this unless he would file a plea of usury. It will be remembered that this case is between Stewart and Jaques, a third party, and not between Stewart and Gordon, the maker of the bill of sale. Our opinion is, that whenever the plaintiff brings an action and seeks to show title in himself by deed or other writing, the defendant has a right to attack the instrument and show that it is not a title, and that it is void; and he can do this without filing a plea to that effect. This bill of sale was not set out in the declaration. The defendant could not know or anticipate by what means the plaintiff expected to prove his title. How could he then be expected to file a plea? Even in ejectment, the defendant has a right to attack a deed without filing a special plea, the difference being that, where no plea is filed, the deed is admitted upon the certificate of its record, and the burden is upon him to prove it. We think, therefore, that the court ought to have allowed this proof to be made if the defendant could have made it. If he could show that this bill of sale was made as security for a debt, and that it it was tainted with usury, the code declares that the title thus made shall be void, and the plaintiff will not be entitled

to recover.

2. We think also, that the court erred in charging the jury as complained of in the 7th ground of the motion. The plaintiff in an action of trover has a right to elect what kind of verdict he will take. If he elects to take the value of the property and the hire thereof, he must then

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