Rigden vs. Jordan & Stewart. tion in an action of tort? It seems that under the statute of Anne, when these two pleas were filed, the plea of justification was not treated as an admission of the facts charged in the declaration, but was treated merely as pleading. The plaintiff, when these two pleas were filed, could not rely on the defendant's plea of justification to make out his case, but had to introduce testimony in order to make it out. Rickett et ux. vs. Stanley, 6 Blackf. (Ind.) Rep. 169, and authorities there cited; Doss vs. Jones, 5 Howard (Miss.) Rep. 158; and Wright vs. Lindsay, 20 Ala. Rep. 428. This rule was changed to some extent by No. 55 of the old rules of court. See 2 Kelly, 477. That rule declared that in all cases arising ex delicto, if the defendant plead justification, and takes upon himself the burden of proof, he should have the right to open and conclude. If he justified in an action of tort and announced to the court that he assumed the burden of proof, under this rule he was entitled to open and conclude, although the plea of general issue had been filed. It amounted to an abandonment of that plea. We think our code has changed both of these rules. It changed the rule of court, because it is no longer optional with the defendant to assume the burden of proof when he files the plea of justification, but it is mandatory. It changed the rule under the statute of Anne, because it declares that "by such plea he admits the act to be done, and shall be entitled to all the privileges of one holding the affirmative of the issue." When, therefore, a defendant files a plea of justification, it is an admission by him that he did the act complained of in the declaration. If it is an admission, then there is no necessity for the plaintiff to introduce proof to establish the facts set out in his declaration; the burden is shifted from the plaintiff to the defendant Rigden vs. Jordan & Stewart. the very moment the defendant files this plea. It devolves upon him, when this plea is filed, to establish the truth of it by proper testimony. Although the code declares that a defendant may file contradictory pleas, and requires the jury to say upon what plea the verdict is rendered if they find for the defendant, in our opinion, when a plea of justification is filed in a case of tort, it amounts, under our code, to a withdrawal or abandonment of the plea of the general issue. When the law says that by the filing of this plea he admits the act to be done, it would be an absurdity to require the plaintiff to go on and make out his case by testimony. Why should the plaintiff be required to prove by testimony a fact which is already admitted in the record. Why should a judge instruct the jury to say in their verdict upon which plea of the defendant the verdict was rendered, and how absurd it would be for the jury to return a verdict for the defendant upon the plea of the general issue, when the defendant, by his plea, had already admitted in open court that he had committed the act complained of in the declaration and thus broken up the plea of the general issue. The case now under consideration illustrates the absurdity of such a thing. Here, as we have seen, the defendants first in their plea of the general issue denied committing the acts complained of, and then, in their plea of justification, they admitted doing the very acts complained of in the declaration; and the jury rendered their verdict on the plea of the general issue. Although the defendants had admitted in open court the acts complained of, the jury by their finding say the admission was not true. The law certainly will not tolerate such an absurdity If we are correct in the above observations, it follows as a matter of course that, when the plea of justification is ▼ 81-43 Rigden vs. Jordan & Stewart. filed, the burden is shifted upon the defendant, and he necessarily has the opening and conclusion of the argument; indeed the code so declares. A great many authorities were read to us by the plaintiff in error, showing that when the two pleas were filed, the plaintiff still had the opening and conclusion. That would be true under the statute of Anne and the decisions thereunder; because, as we have explained above, when the two pleas were filed, the plea of justification was held to be not an admission of the truth of the charges contained in the declaration, and it was therefore necessary for the plaintiff still to make out his case. As we think we have shown, since the adoption of the code, the rule has been changed in this State. The plea does admit the act complained of, and when filed, casts the burden. upon the defendant. It was argued by counsel for the plaintiff in error that although this might be true, still the burden would be on the plaintiff to prove his damages. We do not agree with them in this view. In cases of tort, when properly made out, damages follow as a matter of course. No particular amount of damages can be proved, but the amount of damages is left by our law, in cases like this, to "the enlightened consciences of impartial jurors." If the defendant sustains his plea of justification, there can be no damages; if he fails, the jury can assess them without proof, looking at all the facts and circumstances of the case; or the plaintiff, in reply to the defendant's testimony, may show aggravating circumstances in order to increase the damages, and when alleged, any special damage which is recoverable in the case. 3. The 8th ground complains that the court would not allow the plaintiff to testify as to what May had sworn to at the committing trial, May being dead. We cannot say that the court erred in this ruling, be Rigden rs. Jordan & Stewart. cause the record does not disclose what May's testimony was, so as to inform us whether it was material or not. We will say in passing, however, that if it was material, we should think it would be admissible. In Gavan vs. Ellsworth, 45 Ga. 283, this court held, that "the testimony of a witness, since deceased, given before the magistrate on a commitment trial for an assault with intent to murder, may be used against the defendant in a civil suit for damages by the person injured." 4. The 9th ground complains because the court admitted Ellis to testify that, before the warrant was sued out, he was sent by the defendants to May to inquire whether he had agreed with the plaintiff to furnish him thirty dollars per month to pay off his hands and to pay his provision bills, etc., and that May had replied "no." We think this testimony was admissible. It went to show that the defendants made inquiries as to the truth of the statement which they say Rigdon made to them when he purchased the goods; and that they did not sue out the warrant against him until they had made inquiry as to the truth of his statement. It would tend to show their good faith in the matter, which, in cases like this, is probable cause. 5. The 10th ground complains that the court erred in allowing Poole, a justice of the peace, to testify that he advised Jordan that a warrant would lie against Rigdon for cheating and swindling. We think this ruling of the court below was error. The law allows only the advice given to the defendant by counsel learned in the law to be proved; and only then, when it is shown that the defendant related to counsel all the material facts of his case. Straus vs. Young, 36 Md. 246; Olmstead vs. Partridge, 16 Gray, 381; Cooley on Torts, 183, 184. 6. The 11th ground complains that the court refued to allow the plaintiff to ask Lee whether the jury Harris & Bussey vs. Lowe & Brother et al. There was no error in re- in the former case had given credit to Rigdon's testimony or that of the others. fusing to allow this question. undertake to tell what credit the jury in the other case had placed upon the testimony of the different wit nesses. 7. The first four grounds were, that the verdict was contrary to law and to the evidence, and without evidence to support it. From what we have already said, we think the court should have granted a new trial upon these grounds. The jury returned a verdict in favor of the defendants on the plea of the general issue; and the defendants had admitted in their plea of justification the very acts that the jury found they had not committed. Their verdict was certainly contrary to the evidence and to law. Judgment reversed. HARRIS & BUSSEY vs. LOWE & BROTHER et al. Where a defendant in execution by motion alleges that a sheriff's return of personal service upon him is untrue, and the sheriff answers that he did make such personal service, and this answer is traversed by defendant, the case thereby made should be entered on the issue docket of the court. (a) This is true, though the case is not in the superior court, but in the city court of Atlanta, for laws in relation to practice in the superior court are, by the act constituting that cfty court, made applicable to the latter court; and even without such provision in the city court act, the statute mentioned would be applicable to the city court. (b) The case having been by mistake entered on the motion docket, it was proper to dismiss it from that docket, but it should not have been dismissed out of court because upon a call of the motion docket no counsel appeared for defendant. So while the judgment is affirmed, direction is given that the case be entered upon the issue docket and there stand for trial according to law. December 3, 1888. |