Burney v. Ball, 24 Ga. 505

Burney v. Ball

24 Ga. 505 | Ga. | 1858

Lumpkin, J.

By the Court. delivering the opinion.

[1.] Was the Court right in aliowingthe amended answer to be filed in this case ? It seems that the original bill had been amended. The casetwas transferred,by consent of parties, to the appeal docket. The complainant filed an amendment to the bill, April, 1855. At the June Term, 1856, com*513plainant further amended his bill by striking out and withdrawing the first amendment, which the Court held he hada right to do under the Act of 1853-4. The answer to the amended bill, and which is the subject-matter of this exception, was actually filed June 11th, 1856, although not formally offered as an amendment until the case came on to be heard, twelve months thereafter.

We apprehend there can be no doubt of the defendant’s right to file this amended answer to the complainant’s amended bill. The complainant could compel it. It was the defendant’s privilege to file it.

Mr. Daniel says, that “any amendment of a bill, however trivial and unimportant, authorizes the defendant, though not required to answer, to put in an answer, making entirely a new defence; and contradicting his former answer.” (1 Daniel’s Ch. Pr. 468; Trust and Fire Ins. Co. vs. Jenkins 3 Paige, 589.) Apart, then, from the Act of 1853-4, the right of the party to make this amendment is indisputable.

[2.] While Mr. Newsom, a witness in behalf of the complainant, was under examination, a question was propounded to him as to some material fact, which not recollecting,counsel for complainant proposed to refresh his memory by reading to him a part of his deposition taken in this case. The Court refused to allow the deposition to be read for this purpose; and this constitutes the second exception upon which •error is assigned.

Upon what ground the objection was put by the defendant’s solicitor, and sustained by the Court, does not appear. 'The argument before us concedes that the witness might have been permitted to read his own deposition to refresh his memory ; and the rule of evidence is well settled, that he may. {l Greenl. on Ev. 436, and notes.) But it is insisted that it cannot be read to him in the presence and hearing of the jury. Had the objection below been put upon this ground, it might probably, in this particular case, have been obviated by handing the witness his own deposition and permitting him to *514read it. But there are cases where this cannot be done. The witness maybe blind, or so illiterate as to be unable to read, and we are not prepared to hold that his memory may not be refreshed by his having his sworn testimony read to him. Iiis interrogatories were sued out, executed and returned under the statute, and but for his accidental attendance on Court, the whole of the depositions would have been read as evidence to the jury. It is rather a sharp practice, we think, not to allow a portion of such proof to be read to the witness in the presence of the jury to refresh his memory.

[3.] Was the testimony of Douglas, Breedlove, Mrs. Phebe Ball, Dr. Dickerson and others, admissible for the purpose of proving by parol, as it is expressed in the bill of exceptions, a gift of the property in dispute ?

This proof relates to the acts and declarations of Anson Ball, as to the gift of the property to his son, Milton BalL Our opinion is, that the declarations of the donor, that he had given, are always admissible in evidence in cases of this sort.. We have heretofore held, and still hold, that they are insufficient of themselves to establish a gift. To constitute a good and valid gift, there must be a delivery, actual or constructive — or as it is termed sometimes, symbolical — or a writing.. A delivery may be inferred from the acts of the donor, which go to show that he has parted with the dominion over the property; (10 Johns. Rep. 302) as hiring out a slave in the name of the donee; lending money in the donee’s name, drawn upon a lottery ticket, upon which the donor wrote thedonee’s name, declaring that he had given the ticket to the. donee. These cases will suffice as an illustration of the rule.

[4.] Was the agreement between Milton C. Ball and An-son, his father, to the effect that in consideration that he, Milton, would support his father, molher and youngest sister,, Ellifair, during their lives, that he should have all the residue of his father’s slaves and other property, good, under the 4th section of the 29th Charles II, commonly called the statute of frauds? Neither the Courts in England nor in this-*515country havfe concurred as to the proper construction to be put upon this section. It says, no action shall be brought whereby to charge any person, “upon any agreement which is not to be performed, within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing and signed by the party, to be charged therewith, or some other person thereunto by him lawfully authorized.”

In 1762, a short time before the English common and statute law took effect under our adopting statute in Georgia,the case of Fenton vs. Embler’s ex’or (3 Bur. Sep. 1278) came before the King’s bench in England. The contract was, May, in consideration that the plaintiff would be and become the house-keeper and servant of the said May, and take upon herself the care and management of his family, and perform the said services as long as it should please the respective parties, the testator promised to pay wages to the plaintiff, at and after the rate of ¿66 per year; and.also by his last will to bequeath to the defendant, a legacy or annuity of ¿616 per annum, for and during the term of her natural life.

The declaration alleged performance on the part of the plaintiff, and claimed wages for three years and fifty-nine days. The agreement in parol was admitted, and the only question was, whether it should not have been in writing ? A case was cited from the exchequer in 1726, to the effect that a parol promise to be performed, which may or may not happen within the year, after the making, is void within the statute of frauds.

Lord Mansfield said, that this case, from the exchequer, which he thought could not have been rightly reported, was the only one which could make any doubt. That by all the other precedents, it seemed to be well settled, and the other judges concurred.

Such then was the construction put upon this clause of the *516statute, probably in May, 1776. For the case in Burrows was a much stronger case than the one at bar.

The current authority in this country is, that where the time, when the contract to be performed depends on some contingency, it is within the statute, if the contingency cannot happen within the year. But if it- may happen, it is not within the statute, whether it actually do happen or not. (2 Story on Contracts § 1015, O. and notes land 2; Moore vs. Fox, 10 Johns. Rep. 254; Bennett vs. Hull, Ib., 364.)

In the case before us, is full performance on one side, and the contingency may have happened within the year, to-wit: the death of the party to be maintained.

[5.] We think the court was right in ruling, that if a trust had been created in favor of Ellifair Ball, that it was to be enforced at her instance, and not by the administrator of An-son Ball’s estate. The title had passed out of Anson Ball in his life time, and was irrevocable.

[6.] We think the Court erred in charging the jury at the request of the defendant’s solicitor, that if they believed from the evidence that Anson Ball disclaimed, in his life time, all title to the property in controversy, in favor of Milton C. Ball, and at the time of such disclaimer, Milton C. Ball was in possession thereof, exercising acts of ownership and control over said property, the administrator, Burney, could not recover. And in further charging them, if Anson Ball, by his declarations, disclaimed property in himself, the jury must find for the defendant.

This charge took from the jury the right to consider the entire testimony in favor of the plaintiff. It withheld from them all that was said by Milton C. Ball, at the death of his father. He knew better than any other living person who was the owner of this property. He expressed his regret that his father had died before he “ fixed Iris property.” He stated that his father had died without a will, and took out temporary letters of administration, saying he would be fast enough for Burney ; (the complainant and his brother-in-law.) That *517Mr. Whitsett had told him what Anson Ball had said when he went to Stakeville to get Judge Andrews to write his will, but that he was not there, and Milton C. Ball claimed that it was good as a nuncupative will, and talked of trying to set it up as such. Wo repeat that this and all other proof going to show that the father, by the conduct and declarations of the son, had not parted in his life time, with this property, was improper^ excluded from the jury by the broad and sweeping charge of the Court.

[7.] As to the refusal of the Court to makethe charge, that if the answer of the defendant was contradictory and irreconcilable, one part with another, they ought not to believe it; the Court gave at least an unsatisfactory reason for refusing it, namely, that the jury were the judges of the fact, of whether this be so. Very true; they must determine whether the answer be contradictory and irreconcilable. But the point is, admitting this to be so, what is the rule of law, as to the credence that should be given to such an answer ? The principle will be found to be pretty clearly stated in 4 Phillips on Evidence, by Cowen Hill, part II,page 50, note 33; 10 Johns. R. 424, and 11 Wend.Rep. 240, 252, 253, 343, 348 and 349.

But the repugnance attributed to the answer is not very patent. There is, it is true, more amplification and particularity in the amended answer, but the discrepancy is not very obvious.

[8.] We have intentionally overlooked some of the exceptions in the record, for the simple reason that they are too attenuated and intangible, to amount to anything practical. I regret to see that this is a growing evil in the trial of causes. Instead of asking the great principles of the law, which control the case to begiven in charge to the jury, there is a repetition, and a hair-splitting, which are as annoying’ to a Court as they are unprofitable to the jury. And it is this, amongst other things, which is prolonging to so alarming an extent the terms of this Court. For all these infinitesimal *518nothings are incorporated in the bill of exceptions, and are argued and re-argued here to the great and unnecessary consumption of time that might be much better occupied.

We have examined carefully the case in 2 Iredell’s Lato Reports,{page 361) mainly relied on by counsel for the plaintiff in error, to exclude the acts and declarations of Anson Ball, as to the gift of the property in dispute, to his son. .And it is a strong case on his side. We will dismiss it for the present with this single remark, that while we have no fault to find with the judgment of the Court upon the actual case, we feel constrained, by a regard to consistency and every other consideration, to dissent from the great Judge who delivered the opinion in that case, as to some of the doctrines which he maintains, as to the parol gift of slaves.

Judgment reversed.