Bulloch v. Smith

By the Court. Starnes, J., delivering the opinion. [1.] We know of no rule which forbids the statements of a ■witness, as to the acknowledgments of a party to the suit, from being admitted as evidence, unless the witness gives the very words which had been used. Such a rule would be productive ■of very great inconvenience and injustice. It constantly happens, that witnesses can remember no more than the tenor and effect of the conversations which transpire in their hearing, and ■on the proof of which, important interests depend. If these ■conversations could not be given in evidence, be&vuse the witnesses could recollect only their substance, and not the precise words employed, serious, indeed, would be the consequences which would result,; for, perhaps, in the large majority of such-cases, the substance, only, could be remembered. When what was thus said, is substantially stated, if* the testtimony be not clear and definite, cross-examination should per [398] •form its office, and submit it to the test of careful scrutiny; and if it still remain vague, indefinite and uncertain, this may possibly present a good reason for its rejection. But it will not do to hold it insufficient, merely because the words used, are not stated. ' Especially is it erroneous for the Court, in his charge to the Jury, to apply this rule, when no objection has been made to the testimony. [2.] A distinct admission of a present subsisting debt, is such an acknowledgment as will take a case out of the Statute of Limitations. It is not necessary, that the party should express himself willing and liable to pay. This would be an express promise. A promise is implied, from an acknowledgment that a particular debt is still due. (Angel on Lim. 218. Dickinson vs. McCamey, 5 Ga. 486.) It is true, that the acknowledgment will have no binding efficacy, if it be vague, and go only to the extent of admitting some general indebtedness. There should be an acknowledgment of a particular debt, as then due. From this, as we have said, the law implies a promise to pay. (Angel on L. 254, 260. Martin vs. Broach, 6 Ga. R. 21.) [3.] It is said, that there is no such particular acknowledgment proven by the witness, James S. Bulloch,’ except as to the sum of $400 or $450—cash furnished. That there is no specific acknowledgment of indebtedness, as to the negro, whose Value appears as one item in the account. In the 2d interrogatory, the plaintiff’s counsel requests this witness to look upon the annexed account, and state all that "he knew, going to show that Nathaniel H. Bulloch owed the plaintiff. That account contained the following item: “To value of negro man Jerry, $800”. Now, to this request, as thus submitted, the witness replies, that on, a particular occasion, and at a certain place, N. II. Bulloch “acknowledged the justice of the claim for the negro man Jerry”. What cláim ? Surely, that to which the attention of the witness had been called, as it appeared in the account. We think this a fair and proper construction. If it were not the meaning of [399] the witness, the defendants, by suing out other interrogatories, should have shown it. [4.] It was also urged, that a conditional promise does not take a case out of the Statute, unless it be proven that there has been a compliance with the terms of the condition. That the promise by defendant’s intestate, as proven by this witness was, that he would pay the debt in land, if the plaintiff would take the same at $1200 ; and that there had been no proof of readiness and willingness on the part of the plaintiff, to take the land on these terms. The abstract proposition, as presented by the counsel, is correct. But the promise wras not such as he supposes. The clear and definite statement of the witness is—-first, that the defendant’s intestate acknowledged the justice of certain items, in the account. Secondly, that he promised to1 pay them at that time, if the creditor would take payment in a certain piece of land, at the value of $1200. Not that he would pay only in land, if the same were taken at the price aforesaid; but that he would pay at that time', in land, if taken at that price. There is nothing in such terms, which can be held to modify the absolute promise to pay, which is to be implied from all else that was said by the intestate. [5.] It is alleged as error in the Court below, that he permitted one of the counsel for the defendants, in the concluding argument, to influence the minds of the Jury, by reference to matters which were not in proof before them. Without pausing to examine the accurate weight of this exception—inasmuch as we reverse the judgment on other grounds—we shall-simply say, what this Court has declared, in substance, on former occasions, that such a proceeding should be discouraged by the Circuit Bench, as highly wrong and reprehensible; and that we will do all that in our power lies, to sustain and uphold that Bench, in such wholesome and proper interference and restraints, as may bo deemed necessary to repress this. practice. Judgment reversed.