The Adm'rs Of James M'cleskey v. Wash. Leadbetter

• Decision Date: 31 March 1846
• Docket Number: No. 80.,80.
• Citation: 1 Ga. 551
• Parties: The Administrators of James M'Cleskey, plaintiffs in error. vs. Washington Leadbetter, defendant in error.
• Court: Georgia Supreme Court

1 Ga. 551

The Administrators of James M'Cleskey, plaintiffs in error. vs. Washington Leadbetter, defendant in error.

No. 80.

Supreme Court of the State of Georgia

MARCH TERM, 1846.

This was an action of trover for several slaves; verdict for the defendant in error, who was the plaintiff below, and motion for a new trial overruled. Tried before Judge Dougherty, in the Superior Court of the county of Hall, at March Term, 1846.

For the facts of the case, the grounds of the motion for a new trial, and the errors assigned in the decision of the court below, the reader is referred to the opinion delivered by the Supreme Court.

Junius Hillyer, Jno. W. H. Underwood, and Basil H. Overby, for the plaintiffs in error.

Nathan L. Hutchins, H. and T. R. R. Cobb, James P. Simmons, and--Peeples, for the defendant in error.

By the Court—Nisbet, Judge.

In this action of trover for certain slaves, Amy and her children and grandchildren, the plaintiff introduced in evidence a bill of sale from Drury Leadbetter, dated in 1790 to one Buckner Harris, conveying certain slaves, and among them Amy, to said Harris.

He farther introduced, in evidence, an instrument in writing, bearing date in 1804, signed by Buckner Harris, and attested by two witnesses, one of whom signed officially, as a magistrate; which Instrument appeals, from the record, to have been recorded on the books of Greene county Superior Court, but at what time, not disclosed. This instrument recites, or rather purports to certify, that the maker, Buckner Harris, did, several years before, convey to the plaintiff, Washington Leadbetter, by way of deed of gift, two negroes, to wit, Amy and Melinda, and that the title to said negroes was vested in him, as appeared from the records of the clerk's office of Wilkes county. After which certificate or recital, the instrument proceeds as follows:

" Now be it known to all persons, that whereas the said deed of conveyance is represented to me as being lost or mislaid, so that the said Washington Leadbetter cannot establish his title to said negroes, I do, by these presents, continue to relinquish to the said Washington, all and singular such title as may remain in me, reserving the service of said negroes for his mother, during her natural life, as also to confirm any other agreement they may choose to enter into."

The record shows farther, that the wife of Drury Leadbetter, (he having died shortly after the date of the bill of sale to Buckner Harris,) and who is the mother of the plaintiff, intermarried with James M'Cleskey, the defendant's intestate. All the negroes mentioned in the bill of sale from Drury Leadbetter to Buckner Harris, were, after the death of the former, sold under execution as his property, except Amy, who fell into the possession, at the sale, of Mrs. James M'Cleskey, then the widow of Drury Leadbetter. Amy remained in possession of James M'Cleskey and his wife, until Mrs. M'Cleskey died, when this action was brought against James M'Cleskey for Amy and her descendants, some 8 or 10 in number. James M'Clesky dying, his representatives were made parties.

The plaintiff below farther proved the repeated admissions, for a series of years, of James M'Cleskey and his wife, that the property belonged to the plaintiff, and that Mrs. M'Cleskey had only a life estate in it.

The defendants sought to defeat the plaintiff's title, by showing that the bill of sale from Drury Leadbetter to Buckner Harris was. void; because given without consideration, and to defraud creditors, and because possession in Harris did not accompany it. The defendantsalso objected to the admission of the writing from Buckner Harris to Washington Leadbetter, because, as he alleged, it was no deed, nor the confirmation of one, and required its execution to be duly proven.

The interrogatories of one Williamson Leadbetter were read by the defendants, to prove that the bill of sale made by Drury Leadbetter to Buckner Harris was fraudulent and the interrogatories of one Strickland were tendered by the plaintiff to impeach the credibility of Williamson Leadbetter. In the direct examination of Strickland, he was asked to relate what he had heard Williamson Leadbetter say, about making fifty dollars for swearing in the case for M'Cleskey. To which question Strickland answered, that he heard Williamson Leadbetter say, whilst speaking of his testimony in this suit, that fifty dollars was better than nothing.

Upon the cross-examination, the witness was asked, " Prom whom did he (Williamson Leadbetter) say he was to receive fifty dollars, or any other sum, for the testimony?" Which last cross-interrogatory was not answered, and the admission of the whole of Strickland's evidence was excepted to on that ground. The court overruled the exception and admitted the interrogatories.

Such are the facts in this case, which appear to us to be necessary to a clear understanding of the points made in the assignment.

Upon the trial, the court instructed the jury that the interrogatories of Strickland were admitted, because he did not consider the answers of Strickland on the subject of what Williamson Leadbetter had said about the fifty dollars, as impeaching the credibility of Leadbetter.

Also, that the defendant could not impeach the deed or bill of sale from Drury Leadbetter to Buckner Harris for fraud, or for want of consideration; that it was binding on Drury Leadbetter, and all claiming under him as distributees or legatees; that he could not take advantage of his own fraudulent intent; and that if the jury believed that the defendant field the negroes under him as a distibutee or legatee, he could not set up the fraud of said Leadbetter in avoidance of the deed. That the caper purporting to be a bill of sale from Buckner Harris to Washington Leadbetter, vesting a life estate in Mrs. M'Cleskey, was but a declaration of what he before had done; that such declaration was no. legal evidence of his having done the thing: that such declaration would bind Harris as an admission, but as between other parties, it was not binding as evidence that he had executed a good and valid bill of sale; that if the latter clause should be considered as a conveyance, the whole instrument must be considered; and if the first part of it should be considered as a deed or confirmation, it also showed that he had before executed a deed conveying an absolute and unqualified estate to plaintiff, without any reservation of a life estate to his (plaintiff's) mother. That if the deed had been made as recited in the instrument, its loss did not divest the title to plaintiff, and revest it in Harris; and therefore, in 1804, Harris had no title to convey to any one, much less could he, by the paper in evidence, create or convey a different estate from that created and conveyed in his first deed; and consequently, the paper under consideration could not operate as a deed of conveyance creating a life estate in Mrs. M'Cleskey, and at her death remainder to the plaintiff.

The learned judge gave other instructions to the jury, which, as theywere not made the ground of error, are not here repeated. Under the charge of the court, the jury found a verdict for the plaintiff. Whereupon, the defendant moved a rule for a new trial, which being refused, ho brought his writ, assigning as follows, to wit:

1st. That the court erred in permitting the instrument executed by Buckner Harris to plaintiff to go as evidence to the jury.

2d. In permitting the interrogatories of Strickland to be read to the jury when a material cross-interrogatory was not answered.

3d. In charging the jury that the defendants below could not impeach the deed from Drury Leadbetter to Buckner Harris for fraud, or want of consideration, or because Harris never had possession of the property mentioned in the deed.

Thus, with wearisome but necessary tediousness, have we arrived at the points in this case, for the judgment of this court.

We shall consider the second error first. On principle, we think the interrogatories of Strickland ought to have been rejected, upon the ground that the cross-question was not answered.

It is a power incident to courts of justice, in cases where a witness resides abroad, out of the jurisdiction, and refuses to attend, or is sick and unable to attend, to cause his testimony to be taken, by order, or commission for that purpose. The commission to take the depositions of a witness thus situated is accompanied usually by interrogatories filed by the parties on both sides.—Greenleaf. 387-8-9, and authorities cited in note on page 388. As, however, difficulties lay in the way in England, of the enforcement of a witness to answer, by courts of common law, the whole matter was regulated by acts of Parliament.—13 Geo. 3, and 1 Wm. 4.

At common law, and by statute, the right of cross-examination is studiously maintained.—Tidd Prac. 809-10-11.

The power of issuing a commission to take deposition is incident to courts of common law, in this country, as in England; but the manner in which it is to be exercised and enforced in the States is variously prescribed by statute. By act of the General Assembly of the State of Georgia, of February 1799, (Prin. 425,) it is enacted, that "where any witness resides out of the State, or out of any country, in which his testimony may be required in any cause, it shall be lawful for ' either party, on giving at least ten days' notice to the adverse party, or his or their attorney, accompanied with a copy of the interrogatories intended to be exhibited, to obtain a commission from the clerk of the court in which the same may be required, directed to certain commissioners, to examine all and every such witness or witnesses, on such interrogatories as the parties may exhibit, " &c.

By this act. notice is to be given to the adverse party, with a copy of the interrogatories in chief to be exhibited; obviously with a view to the right of cross-examination.

Farther: by this act it is made the...