30 Ga. 490 | Ga. | 1860
By the Court.
delivering the opinion.
■ Interrogatories were exhibited to the plaintiff in error by the defendant, under the Act to authorize and compel discoveries at common law, December 17, 1847, to compel him to discover to whom he had hired the negro, and the amounts he had received for the negro. Clayton, in his answers, stated what he considered the negro to be worth, and this
1. The Act of 1847 enacts that these interrogatories may be sued out when pertinent, “and such as the adverse party would be bound to answer upon a bill of discovery in a Court of Chancery,” and that the answers to such interrogatories “ shall be evidence at the trial of the cause, in the same manner and to the same purpose and extent, and upon the same condition, in all respects, as if the same had been procured upon a bill in Chancery for discovery, but no farther or otherwise.” An answer to a bill in Chancery, for discovery, is evidence for the defendant,' so far as it is responsive to the call in the bill for discovery or connected necessarily with the responsive matter, or explanatory of it.” Eastman vs. McAlpin, 1 Kelly, 170. The answer of Clayton to the interrogatories could only be evidence for him when responsive to the call, according to the rule stated. It was not responsive — connected with the response — nor explanatory of it. It was, therefore, not evidence, and was properly ruled out.
2. The evidence of witness, Hart, the objection to which forms the second ground of complaint, was properly admitted. It was relevant to the issue, showed a conversion of the negro by Clayton, and could not be excluded by any rule that we know of, simply because the opposite party was willing to admit a conversion. The plaintiff was not bound to take his admission. The fact that the evidence placed the defendant in an unfavorable light before the jury on the trial, does not alter the rule. To have avoided its consequences, he should not have been guilty of the wrong in the first place. Nothing can excuse one for a wrongful act or breach of faith, when the Courts are always open for his protection. Mr. Clayton was not ashamed to be guilty of both these to get the advantage of his adversary; yet, when the matter comes to be investigated, he insists on the advantage thus, acquired, but thinks it a great hardship that his conduct should be exposed and his title put in jeopardy in consequence. We cannot help him out of the dilemma.
3. We were not able to see the force of the objection to the transcript of the record of the mortgage debt from Eeeves to Clayton. The question before the jury was, whether the
And this brings us to the only other point in the case, and that is, was the verdict without evidence, or so strongly and decidedly against the evidence as to require us to order a new trial ?
' The evidence shows that Reeves, at the time of making this deed of settlemént, was possessed of some twenty negroes, a horse and buggy, and a piano. He settles some sixteen of the negroes, all valuable men and women, on his wife and children, retaining out of the deed some four negroes, one of which was under mortgage at the time, and the three others were small children, and what became of them, the record does not show. Charles, the negro in controversy, was levied oh and sold in 1845. One of the executions under which he was sold — and he was sold under divers — was on' a debt that was in existence when the settlement was made. Reeves, at the time of the settlement, was otherwise indebted, and to various persons.
4. Now, it is settled that a father and a husband may make settlement on his wife and children, or on either, and the same will be protected against unexisting debts, provided it be a reasonable and fair one — one made in good faith, and not with an intent to defraud creditors, and the intent must govern. The settlement must not be of his whole estate and a valuable one, retaining but a pittance, and wholly insufficient to pay debts, as in this case. Such a settlement as this never was, and ought never to be, sustained against a creditor.
5. The intent to defraud creditors-is too plain. But the question was an open one for the jury. It was fairly submitted to them at least. There is no complaint as to the charge, and their verdict was against its bona fides, and that verdict, we think, was with the evidence, and it must stand.
Judgment affirmed.