Printup, Brother & Pollard v. James

Jackson, Chief Justice. The defendant in error sued the plaintiffs in error for services rendered them in the way of blacksmith work and other labor. The jury found for him one hundred and seventy-six dollars and thirty-five cents, and the plaintiffs in error made a motion for a new trial; the court refused to grant it, and error is assigned on that refusal. 1. The memorandum was not proved to be a copy of the lost book, so as to go in evidence. Its rejection as a mere memorandum to refresh the witness’s memory perhaps did no hurt, as he swore to the substance of it. The entries were not made by witness nor the book-keeper, but by witness’s wife, who was not sworn. How his memory could be refreshed by it, except by hearsay, it is difficult to see any way. 13 Ga., 508; 17 Id., 65; 64 Id., 243; 1 Greenleaf, §§437-8. 2. The explanation of the omission of this debt from schedule of homestead and exemption record from Burke was admissible. That record was introduced to impeach him, and witness had a right to say why he omitted it. It did not impeach, but only explained the record. 54 Ga., 222; 68 Id., 359. 3. The two first requests to charge the jury are not without objection, because the first is matter for the jury, and it would go too far for the court to tell them what was or was not a good refresher of his memory; and the second would amount to an opinion of the weight of evidence [587] to be attached to the fact that the debt sued on was left out of the plaintiff’s exemption schedule. 4. We do not see that the court erred in refusing to charge “ that entering a new service raises a presumption of payment for previous services,” on the facts in this case, if it be law at all. It is for the jury exclusively to determine what presumptions arise from the facts here. See 49 Ga., 19. 5. The judge being satisfied with the verdict and refusing a new trial, we see no abuse of discretion in his exercise of it on the evidence in refusing a new trial in this case. Judgment affirmed.