29 Ga. 529 | Ga. | 1859
By the Court.
delivering the opinion.
• Was the opinion of the Court below, on the motion for a nonsuit, right ?
The plaintiffs then, acting on this announcement of the
And first, they offered the interrogatories of Cullen and Elizabeth Fretweli.
These two witnesses swore, that Martha Henderson, the daughter of John Henderson, became the wife of James Frptwell; that the slave Malinda, originally, belonged to John Henderson; that they heard him say, in 1834, that he had given Malinda, to his daughter Martha. But they also swore, that he made this gift to Martha, by will and deed of gift The Court excluded the interrogatories — holding that the interrogatories showed that there was better evidence of the gift to Martha, than the sayings of John Henderson, viz: the will and the deed of gift. And we think, that the Court was right. It is true, that the interrogatories did show, that Shere was a will and a deed of gift of John Henderson, which conveyed the slave to his daughter Martha. A deed or a will is higher evidence than sayings. And it is a rule of law that when the existence of superior evidence is shown, inferior evidence shall not be received, until it. be also shown, that the superior is unattainable. It was not shown, that the deed or will was not attainable.
“ I confirm, unto my daughter, Martha Henderson, the land and negroes given her, by me, m a deed of gift, bearing-date 30r.b July, 1833; and vest in her, the right of said negroes and land.” The Court held, that this will should be excluded, until the deed of gift to which, it refers, should be produced. And we think, that the Court was again right. The will did not, itself, identify the negroes, but referred to the deed, as that by which they were to be identified. The will, therefore, did not, by itself, show, that Malinda, the slave in dispute, was one of the negroes, it gave to Martha Henderson ; it did show, however, that that was a matter to be settled by the deed. On that point, then — the point, wheth
This verbal assertion was, therefore, to be excluded, under the rule aforesaid, until the will should be produced, or its non-production be accounted for. The Court did exclude it. We think, therefore, that the Court did right.
The charge of the Court, was but a repetition of the opinion of the Court, announced on the motion for a nonsuit. The charge was, therefore, we think, right.
In conclusion, it may be remarked, that according to the disclosures of the evidence in this case, the title to the slave, is not in Elisha Perryman, but in the legal representative oí David Perryman. Those disclosures show, that Elisha received the slave, from David, to secure the payment of a loan of $400 — of which $300 has been repaid; they show also? that the hire of the slaves thus far, has been more than sufficient to pay off the remaining $300.
Should the legal representative of David, recover the slaves, the present plaintiffs may, perhaps, assert against him, the title which they have been trying to assert against Elisha
Judgment affirmed.