Hardwick v. Hook

8 Ga. 354 | Ga. | 1850

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Is Hardwick liable to pay hire to any body for the negroes which were in his possession? Had he got the custody of them from one capable, in Law, of giving it — as all lawful claimants, we apprehend, are — then, most clearly, he would have been responsible to no one else; and might, as he seeks to do in this case, have protected himself from hire, by contract with the claimant. But Mrs. Walden, being a feme covert, was incapable, in Law, of interposing any claim. She herself acquired the possession of these slaves wrongfully. The Sheriff had no right to give it to her; and, consequently, she could confer no right, by contract or otherwise, upon the defendant, Hardwick. He is, therefore, liable for hire to the rightful owner of the property, upon an implied assumpsit.

[2.] Is Hook, the plaintiff, entitled to sue for and recover this hire, as receiver? We see no reason why he may not. The power is expressly conferred upon him by the decree; and it is competent for a Court of Chancery to delegate such authority. It is the every-day practice to do so. When appointed, his right relates back to the commencement of his principal’s title. Being substituted in the place, he is subrogated to all the rights of the true owners of the property.

[3.] But it is said that Hardwick was not a party to the bill, and that therefore the decree was inadmissible against him — that it was res inter alios acta. J udgments and decrees are not only evidence of the fact of their rendition, hut of all the legal consequences resulting from that fact, whosoever may be the parties to the suit in which it is offered in evidence. The record may be introduced where it constitutes one of the muniments of the party’s title to an estate, as where a deed was made under a decree in Chancery. Barr vs. Gratz, 4 Wheaton, 213. So, here it is competent, by the decree, to establish the plaintiff’s right, as receiver, to maintain this action. The defendant is not affected by it. He is entitled to every defence which he might have had, had the action been brought by Harris, the creditor, and Brantley, the trustee of Mrs. Walden.

[4.] Nor was it error in the Court to refuse to allow Mr. Jenkins to testify that the decree in the bill, filed to protect the wife’s equity, was rendered by consent. This would, in no wise, affect its validity, even if it could be attacked in this collateral way. The parties to the proceeding had a right to compromise their controversy; and why should third persons object, provided they are not prejudiced by it? Indeed, so far from there being anything wrong in this, I had looked upon it as a duty to “ agree with our adversary, while in the way with him.”

The Court, too, was right in rejecting all testimony which was offered, either for the purpose of proving a contract between Hardwick and Mrs. Walden, exempting him from the payment of hire, or the expenditure of money, on her account, to attorneys and others. We repeat, that as a married woman, she was incapable of contracting in relation to this property, it not having been at that time settled to her separate use. And whatever claim Mr. Hardwick may have in Equity, against the trustee of Mrs. Walden, (and that he is entitled to relief, I will not deny,) still, he cannot plead them, either by way of payment, or set-off to an action at Law, brought against him for the undivided hire of the negroes, while the title was joint, and before they were distributed between the wife and the creditor of her husband.

[5.] There is one other decision excepted to, and that is the ruling of the Court, that Brantley, the trustee, under the decree of Mrs. Walden, was competent to prove the hire received by Hardwick. To disqualify a witness, on the ground of interest, it must be fixed and certain, and not remote and contingent. 10 Johns. R. 21. 1 Ib. 491. 3 Dall. 508. 2 Tyler, 399. 1 Term. Rep. 163. 5 Johns. Rep. 256. And Mr. Phillips, in his Treatise on Evidence, (1 volume, 40,) remarks, that “ it may be laid down as a general rule, that executors in trust, trustees and agents are not incompetent, merely on the ground of their liability to action.”

It never was held that a naked trust would exclude one from being a witness. Willis on Trustees, 227, and cases cited. If he were a party to the record, in a Court of Law, the rule would be otherwise ; but in Equity, he might even then be examined as a witness, by leave of the Court, which is granted in such cases, as a matter of course. Marr vs. Ward, 2 Atk. Rep. 228.

Here Brantley, as trustee, was no party to this suit. He is not responsible for cost, nor the result, nor the expense of carrying it on. He is neither the real nor the nominal party. There is nothing then to disqualify him, and we are of opinion that his testimony was rightfully received.