41 Miss. 59 | Miss. | 1866
delivered the opinion of the court.
This was a trial of the right of property, made on the claim of the defendant in error, under the statute, of a negro slave levied on under an attachment against one Mobley at the suit of the plaintiffs in error.
The caséis brought up on special exceptions taken to the rulings of the court below, on the trial, and the action of the court on the motion for á new trial cannot be considered, because the record does not properly show any such motion, nor any judgment of the comí thereon, the same appearing only in the bill of exceptions.
On the trial, the claimant offered evidence to prove that Mobley, the defendant in attachment, against whom a judgment had been rendered in the suit in attachment, was dead at the time of the rendition of that judgment. The plaintiff objected to the introduction of this evidence, but the objection was overruled and the evidence admitted, and the plaintiff excepted; and this is the first emu assigned, Afterwards, the court instructed the jury that, “if they believe from the testimony that Mobley was dead at the time of the rendition of the judgment here sought to be enforced, they must find for the defendant.” These two rulings will be considered together.
They proceed on the idea, that the rendition of a judgment against the defendant in attachment was essential, before the issue on the right of property could be tried. But this was an erroneous view. The issue made by the claim of the defendant in this case, was entirely collateral to the matter of the attachment against the original defendant. Its object and effect were
The claimant, in such case, is not compelled to wait until judgment be rendered against the original defendant; but as his claim of property presents a matter of individual right in him, independent of the question of indebtedness of the defendant, to the plaintiffs in attachment, he is entitled to have his right determined without delay. These rulings of the court were, therefore, erroneous.
The second error assigned is, that the court permitted the deed of trust, bearing date the 19th February, 1858, made by Mobley, to the defendant in error, to be read in evidence against the objection of the plaintiffs, which ruling was also excepted to.
In the argument in support of this assignment, counsel have urged objections to another deed, appearing in the record to have been offered in evidence, made by Mobley to the defendant in error, dated 12th February, 1858. But to the introduction of that deed, which was the deed by which the slave in con
The next error assigned is that the court overruled the plaintiff’s objection to reading in evidence the answer of the witness Gower to the fourth cross-interrogatory, in which he stated that “Mobley had not paid the heirs of James Pickett what he owed them.”
It appears that the deposition of this witness had been taken and was offered in evidence, for the purpose of showing that Mobley was indebted to the heirs of Pickett in a considerable sum; and the object of this was to show that the deeds of trust made by him to the defendant in error, was to secure a valid debt to a large amount due the heirs of Pickett. The other answers of the witness, except that to the fourth interrogatory, showed that his knowledge, in relation to this indebtedness, wTas founded on the statements of Mobley to him, and on matters appearing by the records of the Court of Ordinary in South Carolina. On the objection of the plaintiffs, his answers were all excluded, except that to the fourth cross-interrogatory, and that was permitted to be read, and the plaintiffs excepted thereto.
That answer should also have been excluded. It had direct reference to his knowledge derived from Mobley’s statements and the records, which was already excluded. lie did not know that Mobley was indebted as alleged, except by those means of information; and it was, therefore, improper to permit him to testify that Mobley had not paid the heirs what he owed them; for he had no competent knowledge that he was indebted to them anything. Yet the admission of this answer permitted him to testify, in effect, that he was so indebted. After the other answers were rejected, this, which referred to and was founded on them, should also have been excluded.
These documents were clearly not authenticated according to the act of Congress, which requires both the attestation of the clerk and the certificate of the presiding judge of the court that the attestation is in due form. This is not obviated by the fact that, by the laws of South Carolina, the office of clerk and that of judge were held by the same person. It is still necessary that there should be the attestation by the clerk, in his proper capacity, and the certificate of the judge as to the d/ae ■ form of the attestation. 2 Phill. Evid. 4, Amer. edit. 426. This certificate is altogether wanting; and the documents are plainly not authenticated according to the act of Congress, so as to be admissible in evidence.
It will not do to say that the indebtedness, which these documents were introduced to prove, was sufficiently shown by. the testimony of the defendant Houston. That testimony was simply the statement of Mobley that he was indebted to Pickett’s heirs. Such a statement might not have been sufficient, in the mind of the jury, to show the indebtedness, and it is of questionable force in cases where the conveyance is alleged to be fraudulent as to condition. It cannot, therefore, be said, that this record evidence was useless and had no influence in the cause.