
    HARTRIDGE, CHISHOLM & LOYD, plaintiffs in error, v. DANIEL FRY, defendant in error.
    (Atlanta,
    June Term, 1870.)
    PLEADING —SCALING ORDINANCE —ADMISSIONS I'N PLEADING—CHARGE OF COURT.—In a suit on a note made in 1864, when there was no plea of the general issue under oath, but there was a plea of the 'Ordinance of 1865, admitting and setting forth a consideration for the note, but setting up that the plaintiffs ought not to recover therefor more than one hundred dollars, it was error in the Court to charge the jury that they might scale the note its full amount.
    Pleadings. Scaling Ordinance. Before Judge Johnson. Muscogee Superior Court. November adjourned Term, 1869.
    Julian Hartridge, John Chisolm and Thomas E. Loyd sued Daniel Fry upon his promissory note, payable-to plaintiffs, or order, for $13,200, made on the 23d of August, 1864, and. due ninety days thereafter. He pleaded that said note was to be paid in Confederate currency, that it was given for professional services rendered by plaintiffs, as attorneys at law, to relieve him from imprisonment, under circumstances described in the plea, by habeas corpus. The plea concluded with an averment that “the value of the services of the plaintiffs in suing out said habeas corpus was not worth more than-one hundred dollars.”
    After 'the evidence was concluded pro and con, the Court charged the jury, among other things: “Look to the whole testimony, and say whether you will scale it or not, and if so, how much. You may scale it one-fourth, one-half, or you may scale it altogether. All that the law allows me to *say to you on this subject is, to weigh all the testimony, look at the surrounding circumstances, and return such a verdict as, to you, may seem equitable and just.” The jury found for the defendant. A new -trial was moved for upon the ground that said charge and verdict were wrong, under the foregoing facts, and was refused. That refusal is assigned as error.
    R. J. Moses, for plaintiffs in error,
    cited 35th Ga. R., 28; lb., 118; 36th, 369, 355; 38th, 380.
    Peabody & Brannon, for defendant.
   McCAY, J.

Were it not for the plea of the defendant, and the admission of record there made, we would not disturb this verdict. But we do not think the jury had a right to disregard the admission in the plea. The plaintiffs were not called upon, as the case stood, to make out a case, except for what they claimed over and above the admission. To permit the jury to reject this is to entrap the plaintiffs; so long as this plea stood as part of the record, there was no dispute as to the sum admitted. We suppose his Honor, the Judge, did not, in his charge, think of the plea. But the jury were none the less misled.

Judgment reversed.  