Beale v. Benjamin F

• Decision Date: 30 June 1857
• Docket Number: No. 5.,5.
• Citation: 22 Ga. 431
• Parties: Charles T. Beale, plaintiff in error. vs. Benjamin F., Hall, defendant in error.
• Court: Georgia Supreme Court

22 Ga. 431

Charles T. Beale, plaintiff in error. vs. Benjamin F., Hall, defendant in error.

No. 5.

Supreme Court of the State of Georgia

JUNE TERM, 1857.

Trover, in Richmond Superior Court, Tried before Judge Holt, at October Term, 1856.

This was an action of trover, brought originally by Oswell E. Cashin, administrator of Gazaway Beale, deceased, against Charles T, Beale, for the recovery of three negro slaves, al. leged to be the property of the intestate. Cashin was appointed administrator by virtue of his office, (Clerk of the Superior Court,) and at the expiration of his term, the suit was prosecuted by Benjamin F. Hall, who had been appoin. ted administrator de bonis non, likewise by virtue of his office.

The facts of the case, and the points decided which arose thereon, will fully and sufficiently appear, from the bill of exceptions and the opinion of the Court.

The following is the bill of exceptions, viz.:

State of Georgia, Richmond County.

In the Superior Court, April Term, 1857.

Charles T. Beale, plaintiff in error, vs. Benjamin F. Hall, Administrator of Gazaway Beale, deceased, defendant error.

Bill of Exceptions.

Be it remembered, That at the October Term, 1856, of the Superior Court of Richmond county, there was called, and came up for trial on appeal, the case of Oswell E. Cash-in, administrator of Gazaway Beale, deceased, against Charles T. Beale, being a Common Law action of Trover for the recovery of three negro slaves, viz: Matt, Buck and Martha; the parties being at issue before a Special Jury, the Court, on the motion of plaintiff's counsel, and which was objected to by defendant's counsel, allowed plaintiff to amend his pleading, by substituting Benjamin. F. Hall, administrator, de bonis non, of Gazaway Beale, deceased, as the party plaintiff in the case, in the place of said Oswell E. Cashin, without scire facias, or other notice to the defendant—there being no motion for a continuance, on account of surprise— and to which decision of the Court, defendant's counsel excepted.

In the further progress of said trial, defendant's counsel excepted to the plaintiff's pleadings, for the reason, that in the declaration it was not alleged that Oswell E. Cashin was the administrator of Gazaway Beale, in his character of Clerk of the Superior Court of Richmond county, which fact appeared from the letters of administration, put in evidence by plaintiff.

Further: In the progress of said trial, the plaintiff was allowed to introduce the parol testimony of witnesses Rhodes and Greenwood, which went to show, that the deeds relied upon by the defendant, were not what they purported to be, to-wit: absolute bills of sale, but that they were intended toprotect the property of Gazaway Beale from the claims of his creditors, to which defendant objected; which objection, as well as a subsequent one, that the Court would rule out and withdraw all such testimony from the consideration of the jury, was overruled by the Court; counsel for defendant excepting.

In the further progress of the trial of said case, defendant's counsel moved the Court to be allowed to recall his announcement that he had closed his case, in order to prove the fact, by the witness Simpson, that, "at the time defendant paid Gazaway Beale Jive hundred dollars, both the Beetles being present, the defendant asked Simpson, whether the title papers he already had would do? And Simpson told him they would." The application to the Court having been made, on the opening, of the Court, the next morning after the announcement, and before the argument on the facts had commenced, counsel for defendant stating in their place, that they were not aware of the fact sought to be proved until after the announcement was made: which motion was overruled by the Court, and to which defendant's counsel excepted.

Further: In the progress of the trial of said cause, the counsel for defendant requested the Court to charge the jury, that "if they find Benjamin E. Hall, Clerk of the Superior Court, is not the legally appointed administrator of Gazaway Beale, they ought to find for the defendant;" which charge the Court gave, but qualified it by adding thereto the remark, that the letters of administration of said Hall are conclusive evidence of the fact of his administration, and establish his right to sue;" to which additional qualification, by the Court, to said charge, so asked, the counsel for defendant ex-cepted.

In the further progress of said trial, the Court charged the jury, that "nothing had been shown to pass the title of the slaves, from Gazaway Beale, except the bills of sale, " when counsel for defendant had relied, in their argument beforethe jury, upon the facts testified to by witness Simpson, as to showing a sale of the slaves by Gazaway Beale to the de fendant, on the day before the blow was received which resulted in the death of Gazaway Beale; and to which charge, the defendant\'s counsel excepted.

In the further progress of said trial, the counsel for the defendant requested the Court to charge the jury that, "if the jury find that the bills of sale made by Gazaway Beale to the defendant, were made in fraud, and if Gazaway Beale was a party to the fraud, they are good as against the maker of them, and carry a good title to defendant; and that in cases of fraud, by both parties, the Court will leave them where it finds them;" Which last-mentioned charge, as asked, the Court refused to give, and in lieu thereof charged the jury, "That the administrator of a decedent represented the distributees and creditors of bis estate; and that an instrument which would be void against the creditors of the decased, would also be void as against the administrator;' (there having been no evidence of any debts due by the estate of such decedent,) and to which refusal of the Court to give such charge, as asked, and the giving of the charge, as made to the Jury, in lieu of the one asked, the counsel for the defendant excepted.

In the further progress of said trial, the jury returned into Court with a verdict, which the Court refused to receive and have entered on the minutes; but directed and instructed the jury as to the verdict they must find; the papers being handed to the jury, they returned to their room, and shortly afterward returned with a verdict conforming to the directions of the Court, and which was in the words and figures following, to-wit: —''We, the jury, find the defendant guilty, and we assess damages for the plaintiff, in the sum of thirty-seven hundred dollars, for the value and hire of the negroes, Buck, Matt, and Martha: of which, one thousand dollars may be discharged by the delivery of the boy Buck, one thousand dollars by the delivery of the boy Matt, and eighthundred dollars by the delivery of the woman Martha, on the first day of January next, to Benjamin F., Hall, administrator, and on the payment of costs by said dfendant." "Porter Fleming, foreman." The counsel for defendant insisting that the verdict, as originally brought in by the jury, should be received, and that the one last brought in, under the directions of the Court, should not be received—all which was overruled by the Court, and the said latter verdict was ordered by the Court to be entered on the minutes: counsel for defendant excepting. Counsel for defendant, also, further moved the Court, that the jury be polled, which the Court refused, and ordered the verdict recorded; and to which counsel for defendant excepted.

Whereupon, afterwards, and during the said October term, eighteen hundred and fifty-six, of said Court, the defendant's counsel, before the adjournment of the Court, moved a new trial in said case, on the following grounds, to-wit:

1st. Because the verdict was contrary to law, evidence, and the preponderance of evidence,

2d. Because the suit was originally brought in the name of Oswell E. Cashin, administrator of Gazaway Beale, and the Court allowed an amendment of the declaration by making Benjamin F. Hall, administrator dc bonis non, of Gazaway Beale, the party plaintiff by order of Court, without scire facias, or other notice to the defendant.

3d. Because the Court refused to allow the defendant to recall his announcement, that he had closed his case, in order to prove the fact by the witness Simpson, that "at the time defendant paid Gazaway Beale the five hundred dollars, both the Beales being present, the defendant asked Simpson whether the title papers he already had would do;" which application to the Court, was made before the argument upon the facts had commenced: counsel for defendant stating in their place, that they were not aware of the fact until after the announcement was made. 4th. Because the Court admitted parol testimony from the witnesses Rhodes and Greenwood, which went to show that the deeds relied upon by defendant were not what they purported to be—to wit, absolute bills of sale, but that they were intended to protect the property of Gazaway Beale from his creditors; and because the Court subsequently refused, upon the application of the defendant, to rule out and withdraw all such testimony from the consideration of the jury.

5th, Because the Court in charging the jury, as requested by the defendant, that "if the jury find that Benjamin F. Hall, Clerk of the Superior Court, is not legally appointed administrator of Gazaway Beale, they ought to find for the defendant, " added to that charge the remark-, that "the letters of administration of said Hall are conclusive evidence of the fact of his administration, and establish his right to sue."

Cth. Because the Court in his charge to the jury said, that "nothing had been shown to pass the title to the slaves from Gazaway Beale, except the bills of sale;" when the counsel for defendant had relied, in their argument before the jury, upon the facts testified to by the witness Simpson, as showing a sale of the slaves by Gazaway Beale to defendant, on the day before the blow was received...