By the Court.
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.)