
    James Wilkinson, plaintiff in error, vs. Jonathan Davis, Executor of Elbert Heister, dec’d, defendant in error.
    The rule aa to laying the foundation for impeaching a witness hy statements made out , of Court, was not complied with in this case, and therefore there was error in admitting the impeaching evidence.
    
      Complaint. In Lee Superior Court. Tried before Judge Allen. March Term, 1861.
    This action, was on a promissory note given by Heisler, the defendants intestate, and another. The plea was payment ; and to meet the same, the plaintiff introduced the testimony of one Elizabeth Johns, taken by interrogatories, who testified that she heard Heisler say in the morning of the day he was shot, that plaintiff had taken up this note; that he, Heisler, was going to get the money and have a settlement with plaintiff; and that he did not know that he owed plaintiff the full amount of the note when they came to a settlement.
    One of the cross-interrogatories was in these words: “Have you ever had'a conversation with ¥m. C. Gill, of Lee county, concerning the note referred to in the direct interrogatory? If yea, state what that conversation was, when and where it was, and who was present at the time, and every thing about it.”
    To this, the witness answered as follows:
    “I have had a conversation with said .Gill, as referred to in the direct (?) interrogatory, and do not recollect what that conversation was, more than I told said --I did not think Heisler owed Janies Wilkinson more than two hundred dollars.”
    The defendant introduced Wm. O. Gill, to whose evidence the plaintiff objected on the ground that a proper foundation for it had not been laid. The Court overruled the objection ; and Gill testified “that Mrs. Johns stated to him that Elbert Heisler said to her that he and plaintiff were to have a settlement, and that plaintiff would be owing him three or four hundred dollars. She did not say at what time she got the information from Elbert Heisler.”
    There was other evidence in the case, but it need not be recited.
    The jury found for the defendant; and the plaintiff moved for a new trial on the ground, among others, that the Court erred in admitting the evidence of Gill as above set out. The Court refused a new trial, and that is complained of as error.
    West and Vason & Davis, for plaintiff in error.
    Warren & Elovd, for defendant.
   Harris, J.

The defendant below, by a cross-interrogatory propounded to Mrs. Johns, a witness for plaintiff to prove an admission of indebtedness by Ileisler on the morning of the day he was killed, sought to lay a foundation, so as to call a witness to discredit her. ’ It was not done in accordance with the rule laid down many years ago, in a case determined at Talbotton, and which rule has been repeatedly reaffirmed. As the cross-interrogatory was not in conformity to the rule on this subject, the circuit Judge erred in allowing Gill to testify as to her conversation with him.

The record shows that the defendant relied on the plea of payment. Two witnesses testify as to settlements at different times; yet, whether there was a payment at all — a payment in part or in full, — does not appear. Payment and settlement are by no means synonymous.

As this ease is sent back for a re-hearing, to put the matter beyond conjecture, the testimony of the witnesses who were present at any settlement ought to be re-taken; and they should be so interrogated as to draw out what occurred.  