Chance vs. Summerford.

JAMES CHANCE, defendant in error, vs. HENRY Summerford, defendant in error.

[1.] Record of a cause between other parties admitted to prove that there was a judg

ment.

[2.] Evidence admissible to prove that such judgment was paid, and by whom it was paid.

[3.] Note sued on no part of the record of the judgment obtained thereon; and if a copy be admitted in evidence without objection, it may be considered by the jury.

Assumpsit, from Baker county. Tried before Judge ALLEN, May Term, 1858.

Chance made his note, which B. N. Scott and Henry Summerford endorsed to the Central Bank of Georgia. After the maturity of the note, the same was sued to judgment in Houston county, and execution issued thereon.

Henry Summerford paid off the fi. fa. It appears, from the record, that Chance having removed from the county o Houston, was not served with the writ.

Summerford sued Chance on the debt after he obtained control of the fi. fa., and tendered in evidence on the trial the transcript of the record of the suit and execution against him from the county of Houston, and therein the evidence of payment of the fi. fa. by him; and defendant's counsel objected to its admission. Which objection the Court overruled, and defendant excepted.

Plaintiff proposed to read the answers of Warren and Summerford to interrogatories, proving the transfer, after the payment of the execution, to Summerford, the plaintiff. Defendant's counsel objected to their answers being read, which objection the Court overruled, and defendant again excepted. The answers were read.

Plaintiff here closed his case, and the defendant moved the Court for a non-suit on the grounds taken in the rule nisi for a new trial; which motion was refused.

The jury found in favor of the plaintiff.

Chance vs. Summerford.

And defendant moved the Court for a new trial on all the points taken by defendant, as above stated and overruled, and also on the grounds that the verdict of the jury was contrary to law, and that the verdict of the jury was contrary to the evidence; which the Court overruled.

Whereupon defendant excepted, and assigns the same as

error.

P. J. STROZIER, for plaintiff in error.

R. F. LYON, for defendant in error.

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

[1.] The exemplification of the case in favor of the Central Bank against the endorsers of the plaintiff in error was admissible for the purpose of proving the recovery of the debt against them by the bank, and the evidence of Warren and Summerford was admissible to prove the payment of the money by the defendant in error. 1 Greenleay's Ev., secs. 538, 539.

[2] The counsel for plaintiff in error moved for a nonsuit on the grounds taken above, and overruled by the Court, and to the refusal of the Court to award it he excepted. Having sustained the decision of the Court below in admitting the above stated evidence, it follows that it must be sustained in refusing a non-suit; and of course, so far as the motion for a new trial is based on allegations of error in the Court for overruling exceptions to the testimony and refusing the motion to non-suit the plaintiff, the judgment of the Court below must be affirmed.

[3.] The grounds that the verdict was contrary to law, and that it was contrary to the evidence, must be overruled also. There are two copies of the note sued on by the Central Bank, sent up in the record. One of these copies has the names of the endorsers, and the other has not. They are properly, no part of the record in the Central Bank case, and

Cook vs. Barnett.

if they had been objected to as inadmissible, they must or ought to have been rejected, whether they were incorporated in the exemplification or not. If the original note had been offered; it ought to have been admitted upon proof, or without proof if not objected to for want of it. The copy seems to have been admitted without requiring the party to account for the original, or to make proof of its authenticity. This evidence was before the jury, and without objection, unless the counsel for plaintiff in error considered that he was objecting to it as a part of the record, which, as we have said it was not.

Judgment affirmed.

JOHN R. Cook, plaintiff in error, vs. JOHN BARNETT, defendant in error.

[.] An action, (set off), to recover back money lost at cards, founded on the Act of 1764, against lotteries and gaming is not one of the actions for the not bringing of which, the non-residence of the parties subject to them, is made an excuse by the limitation Act of 1806, or that of 1839.

[2.] In such an action, the winner is compellable to discover the gaming, under the discovery Act of 1847, and the Acts amendatory of that Act.

Complaint, from Houston county. Tried before Judge LAMAR, April Term, 1858.

Barnett sued Cook on a due bill for $220, payable to him, dated March 18, 1854.

To this Cook pleaded this plea, that before and at the time of the institution of this action, the plaintiff was and from thence, hitherto hath been and still is indebted to defendant in the sum of $800, won by plaintiff of him at a game of cards.

Cook vs. Barnett.

about the 12 March 1854, which he was ready and willing to credit with the amount of the due bill, and asked a verdict and judgment in his favor for $580.

The suit was commenced on the 2d of September, 1856. The plaintiff read in evidence the due bill and closed his

case.

Defendant offered to read in evidence the answers to certain interrogatories propounded to plaintiff, which stated that the due bill was given in Albany a few days after he (plaintiff) had won from defendant about $800 at cards, which sum was paid as won. This due bill was given for money loaned, which was not loaned to bet with and was not won of defendant after it was loaned, as he never played with him after the loan. The time he won the $800 was the only time he ever played with defendant, and after they quit playing, defendant owed him nothing for he paid as he lost.

The answer also stated that the plaintiff was and had always been a citizen and resident of North Carolina, and that he left Georgia some ten or fifteen days after winning the money.

The Plaintiff's counsel objected to reading the said answers in evidence, upon the ground that the subject matter of defendant's set off was barred by the statute of limitations, and that they tended to criminate plaintiff.

Which said objection was sustained by the Court, whereupon defendant's counsel excepted.

The verdict of the jury was in favor of the plaintiff for the full amount &c. On the exception error is assigned.

COOK & MONTFORT, for plaintiff in error.

HUNTER & ELLIS, for defendant in error.

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

The Court below held, that, according to the offered evidence, the set off was barred by the statute of limitations.

Cook vs. Barnett.

The counsel for Cook admit this decision to be right, unless it is contrary to something, in the limitation Act of 1806, or that of 1839, but they say, that it is contary to the provision in those Acts, respectively, relating to non-residents.

The provision in the Act of 1806, (an Act which revives the Act of 1767,) is, that, "if any person or persons that is, or shall be, entitled to any such action of tresspass, detinue, action of trover, replevin, actions of account, actions of debt, actions of trespass for assault, menace, battery, wounding, or imprisonment, actions on the case for words, be, or shall be, at the time of any such cause of action given or accrued, fallen, or come, within the age of twenty-one years, feme covert, non compos mentis, imprisoned, or where the defendant shall remove out of the jurisdictional limits of this State, that, then, such person or persons shall be at liberty to bring the same actions, so as they take the same within such times as before is limited, after their coming to, or being of, full age, discovert, of sane memory, at large, or the return of the defendant into the same, as by other persons having no such impediment should be done."

The benefit of this provision, is given to those entitled to the sort of actions refered to, by the limitation Act of 1767, the revived Act.

[1.] But the plea of set off in the present case, even if considered as an action, is not one of those actions. It is founded on the Act of 1764, to suppress lotteries and prevent gaming; or on the Act of 1765, to amend that Act; and the Act of 1767, does not refer to any action founded on either of those two Acts.

A similar remark is to be made as to the Act of 1839. That Act includes only cases "founded on bonds, or instruments under seal;" and "upon notes, and other acknowledgements under the hand of the party." This set off not being founded upon anything of these kinds, the case made by it, is not within the Act of 1839.