Lockett v. Mims

| Ga. | Jan 15, 1859

By the Court.

Lumpkin, J.

delivering the opinion.

[1 and 2.] YVe see no error in refusing a new trial on the first and second grounds in the motion. If it be proven that the general plan of a parent is to loan, and not give slaves to his children when they marry or settle in life, it tends to rebut the presumption of a gift, arising from the fact, that certain negroes were permited to go into the possession of a daughter upon her intermarriage, or at some subsequent time. Here it is not pretended that a formal gift was made of the negroes.

Not Allowing parol proof to be made, that he had given land to two of his sons, does not rebut the proof as to the slaves. Besides, the record shows that the title to the real estate is now in litigation.

[3.] We do not know that more need be said, as to the proper conduct of counsel in arguing causes. We find it difficult to coniine them to the record in this Court, and it is more difficult we doubt not in the Court below. For there, it is not always agreed as to what has or has not been proven; there may be an honest mistake as to that, while here it is a matter of record, about which there need be no misapprehension. To depart from the testimony, much more, voluntarily to pervert or misrepresent or add to it, is a great wrong; and to say nothing worse, it leads to those unseemly altercations which so seriously disturb the decorum and dignity of Courts. For myself, I envy not the success of those who achieve their triumphs in this way. I intend this as a general remark, and not for the counsel in this case.

4th, 5th, 6th, 7th. These four grounds may be considered and disposed of together. If the title by which Lockett held these slaves is a loan, and not a gift, then the verdict is not contrary to law; otherwise it is. For myself, I am free to admit, that in my judgment, the weight of the proof is against the verdict, and yet not perhaps so strongly and decidedly so, as to compel this Court to control the discretion of the Circuit Judge, in refusing a new trial.

8th. The witness, Chas W. Mims, begins bis statement, by saying, “ It was my understanding,” &c. It is obvious from what follows, that he is testifying as to his knowledge or recollection of the facts and circumstances which attended the transfer of the possession of the slaves from his father to his brother-in-law. He does not intend to recite what be had heard or learned from others. It is the common mode of expression in use in the country.

9ih. As to the 9th, and last exception, to the decision of the Court ruling out the evidence of Charles W. Mims, as to what was said and not said, by his father and himself, when he was about removing certain slaves, it amounts to nothing; and was properly excluded on the ground of immateriality. It was equally consistent with the idea of a loan or a gift.

Judgment affirmed.

McDonald, J. absent.