dissenting.
The real controlling question in this case was fraud or no fraud; the verdict necessarily turned upon it; the *569jury had to decide .it; they had to decide it on facts ; facts are shown by testimony; the party introducing no testimony was entitled to the concluding argument; before a jury it's importance is incalculable ; in this case the court gave it to the plaintiff in fi. fa. as a right, because he offered, as it is claimed, no evidence.
We all concur inj:he legal principle involved, but disagree as to the legal effect of what transpired on the trial. The claimant assumed the burden on the opening of the case, offered his testimony and closed ; the counsel for plaintiff in fi. fa., upon consultation, announced to the court that they would offer no testimony, but desired to call back to the stand a witness who had testified for a moment, and ask him some questions which had been omit' ted ; no objection was made ; he was recalled, examined as to entirely new matter, and the examination pressed, until the evidence swelled into proportions very nearly equal to that which had been given in by the claimant, and .undoubtedly controlled the verdict. The court gave the conclusion to the plaintiff in fi. fa.
I think this was error. He was entitled to the conclusion upon one condition only, and that was that he introduced no evidence.
The law does not say, nor does it mean, that it depends upor whose witnesses are called to testify; it depends upon whether any evidence is offered ; and if it is, whether from newly called or previously sworn witnesses is wholly immaterial. What the witness said was either evidence or nothing; it was held to be evidence, introduced as such, and was offered by the plaintiff after the claimant had closed, and this lost him the right, in my opinion, to the conclusion.
Neither do I think that it was necessary for the claimant to have objected; he had the right to stand on the law, and if any testimony was introduced by the plaintiff in fi. fa. he lost the conclusion thereby, and that whether it came from one witness or another. 45 Ga., 283; Rules Superior Court, 13.