
    No. 102.
    Walter Wadsworth, plaintiff in error, vs. Joseph Thompson, administrator of the estate of M. W. Furmalt, defendant in error.
    [1.] On an affidavit' of illegality, the plaintiff’s Counsel closed his evidence and his address to the Jury, without reading the fi.fa. or the affidavit. 'The defendant’s Counsel then insisted before the Jury, that this omis.sion must prevent them from finding for the plaintiff, who, thereupon, asked leave to then read to the Jury the fi. fa. and affidavit.: Held, that the leave should have been granted to him.
    Illegality, in DeKalb Superior Court. Tried before Judge Bull, April Term, 1855.
    Richard Peters obtained judgment and execution against ..John Wadsworth, Walter Wadsworth and Moses W. Furmalt, in the life-time of the latter. Walter Wads worth paid off the execution and applied to and obtained an order from the Inferior Court of said County, to proceed against Furmalt for one half of the debt, on the ground that they were co-securities for John Wadsworth. To the /?. fa. Furmalt filed an affidavit of illegality, alleging that ho. was security for both the Wadsworths, who were principals in the debt, and that the payment of the fi.fa. by Walter Wadsworth discharged him.
    The issue on the affidavit of illegality, was submitted to a ■ Jury, when the plaintiff proved by John Wadsworth, that he * (witness) was alone interested in the consideration of the note
    
      upon which the judgment4was founded,., and closed.his case. The Counsel for defendant having introduced ' no evidence, proceeded to state his points to the - Jury; and among other 'things, stated that plaintiff had not'tendered in evidence the fa. and affidavit of illegality; and that,- therefore, the Jury could not find for the plaintiff.. Counsel for plaintiff, then moved the Court to be permitted to .Introduce the fi. fa.- and execution in evidence. The Court refused:.the motion and dismissed the levy, and Counsel for. plaintiff excepted.
    Ezzard, for plaintiff in error..
    Bleckley, for defendant in. error.,
   By the Court.

Benning, J.

delivering the opinion.

Even if the fi. fa., and, affidavit! of illegality, in cases of this sort,, are to-- be considered .'as-.belonging to evidence, rather than to pleading, we.think that they should, in this case, have been.admitted to. the-Jury bythe.Cdurt, at the time when the Court'was asked to adihit.them to the Jury. That the Court had'the power to. admit, them -.to the Jury at that time, there can be no doubt.’. And!the.--.case-mas?'one in which, as it appears to us, the power should have been- exercised.

The defendant did. not put his. objection to the admission of the papers, on . the'ground that, he would be surprised by them if admitted.'. And: the mature of,'them is such, that if they hadheen,-, admitted,': it isprobable.'that: they would not have drawn a singlé..comment.from his Counsel. They could serve toi.es.tablish:,only, thcifformal part'of the-plaintiff’s case.

Now. if.thc;power.tOi.adrhit evidence '.is not to be exercised in. such a case as-this, what kind of á case is it in which the power is to bo exercised? See Taylor & Taylor vs. Smith, (16 Ga. R. 11.)  