Lunday v. Thomas

| Ga. | Nov 15, 1858

By the Court.

Benning J.

delivering the opinon.

[1.] When a competent witness is called" and sworn by one party, the other party will, ordinarily, and in strictness, be entitled to cross-examine him, though the party calling him does not choose to ask him a question. 1 Green. Ev. sec. 445.

Wm. S. Rockwell was sworn in chief by the plaintiff.

It follows that the Court below did not err, in permitting the defendants to cross examine him, generally.

[2.] .One of the grounds of the defence, was, that the agreement on which the bill was founded, was made to defraud the two minors, Edward J. and Jno. G. Coates; and the matters in which the alleged fraud consisted, were stated in the answers. Parol evidence of fraud in an agreement, is admissible. The evidence of Rockwell, setting forth “ terms, stipulations or agreements outside, and not contained in, the written contract,” related to these matters of fraud. Therefore it was admissible; and the Court in admitting it, did not err.

[3.] When a paper is beyond the jurisdiction of the Court, verbal evidence of its contents, is admissible.

The order written by the witness, Rockwell, for A. Y. Hampton, to sign, was delivered to Hampton, and he was beyond the jurisdiction of the Court. The Court, therefore, in permitting the ivitness, to state the contents of the order, did not err.

[4.] Andrew Y. Hampton, was agent for Ann Jane Hampton, (now Mrs. Lunday,) in the part which he took in the matters in which, consisted the alleged fraud on the minors; i. e., her agent; "in procuring the agreement to a consent-verdict before a special jury, and the withdrawal of the caveat to the will.” And what one does by his agent, he does by himself. Evidence of his participation in those matters, was therefore admissible.

[5.] Andrew Y. Hampton was the executor of John G. ■ Coates, deceased, the father of the two minors, Edward J. and John G. Coates, and the first husband of Mrs. Steely, wife of Wm. J. Steely, who was claiming to be, and who was acting as the guardian of the two minors. Hampton claimed that the estate of Coates owed him, as executor, a large sum.

The defendants alleged, that Wm. J. Steely, to induce Hampton to aid in the compromise of the caveat, agreed to admit his claim at $3,000, and thereupon, gave him three notes of $1,000 each ; one made by him, Steely, in his own right; one made by him, as guardian of Edward; and the other made by him, as guardian of John G. Coates. And the defendants proved these allegations.

Now, if the fact really was, that the estate was indebted to Hampton, to the amount of the notes, or, even to a less amount, the case was obviously better for the plaintiffs, than it would have been, if the fact had been, that the estate was not at all indebted to Hampton.

The testimony of Wm. S. Rockwell, giving "the result of calculations he had made, upon vouchers and returns, as to the indebtedness of the estate of John G. Coates to him, as executor of said estate,” went to show, that the estate was largely indebted to said Hampton, as such executor. The testimony, therefore, was not “against” the plaintiffs, but was beneficial to them; consequently, even if it was illegal testimony, its admission was not a ground for a new trial. The new trial Act of 1854, goes no further, than to require, a new trial to be granted, when the illegal evidence is “ against” the party excepting to its admission.

[6.] An answer in chancery, “is not evidence except against the party who made it, as to contradict his testimony in another cause ; for with respect to others, it is res inter alias acta.” 1 Stark. Ev. 184.

Therefore, the Court was right in excluding the answer of Andrew Y. Hampton, made in the cause as against him in favor of Steely and wife.

[7.] The requests numbered, 1, 2, 3, 4, S, 6, and 7, proceed on the assumption, that the validity, of the probate of the nuncupative will, was in issue. But we, agreeing with the Court below, think, that this assumption is not true. It is not the object of the bill, to have the probate, confirmed; nor is it the object of the answers, to have the probate, set aside. It is the object of the bill, to have that part of the compromise carried out, which relates to the property given by the compromise, to Mrs. Lunday; and it is the object of the answers, to pi event it from being carried out; an object which they seek to accomplish, not by attacking the probate, but by attacking the compromise itself, for fraud. Therefore, even if the object of the answers be attained, the other part qf the compromise, that by which, the will was admitted to probate, will remain unaffected; and consequently, the probate itself will stand good, until got rid of by some new proceeding.

We think, therefore, that the Court was right in refusing to give these seven requests in charge.

[8.] It is, in genera], true, that infants are not bound by their admissions. Therefore, the Court’s qualification of the eighth request, we think, was a proper qualification.

[9.] If guardians have the right to make compromises for their wards, it is certainly true, that they have not the right to do so, fraudulently.

Therefore, we think that the Court’s qualification of the ninth request, was a proper qualification.

[10.] The bill of exceptions, states the next two requests, and the disposition made of them, as follows :

“ The Court was requested to charge the jury

“ 1st. In general, infants, as well as adults, are bound by the conduct of their solicitors acting, bona fide, in their behalf.”’

“2d. Infants are bound by a decree taken by consent, although no reference to a Master to enquire, whether it was for their benefit.”

“ The Court told the jury, that these were correct principles of law, but did not apply to this case, unless the jury should be satisfied, that the agreement was not tainted with fraud ; was manifestly for the benefit of the minors; and, also, that they must be satisfied, that the solicitor was employed by a properly constituted guardian.”

Surely it must be true, that an infant is not bound by the act of a solicitor, who is not his solicitor. And it must be equally true, that a decree obtained by the consent of infants, does not bind them, if the decree is tainted with fraud.

The questions on the next two requests,- have been disposed of, in the disposition made of previous requests.

The last request and the disposition made of it, are stated as follows:

“ The Court was requested to charge the jury, that a foreign guardian can sue and litigate in this State, for his wards, and has the consequent right and power, to compromise any suit which may be pending.”

“ The Court told the jury, that this was correct as a geneal principle, but did not apply to this ease, if the guardian, Steely, had removed from Alabama to this State, at the time —for his letters obtained in Alabama, abated upon his removal to Georgia.”

The “ time” here meant, was the time when Steely appeared in the Court of Ordinary, and entered the caveat, as guardian of the two minors.

It is only by statute, that a guardian appointed in another State, can sue at all in this. And the statute goes no further, than to authorize such guardian to sue, if both he and the ward reside out of the State, at the time when he sues. Cobb, 329.

We think, that the qualification annexed to the request by the Court, was substantially correct.

Judgment affirmed.