57 Tenn. 447 | Tenn. | 1872
delivered the opinion of the court.
The bill in this case was filed in the Chancery Court at Ripley by a number of the creditors of J. W. Borum & Bro., charging that they had fraudulently sold a stock of goods to- J. R. Stone for the purpose of avoiding the payment of their debts. They charge
The bill was filed against J. W. Borum and P. S. Borum, Joshua R. Stone and others. J. W: Borum died, leaving P. S. Borum the surviving partner, who failed to answer. J. R. Stone answered and denied specifically and emphatically every allegation of fraud as to himself, and all knowledge of. any fraudulent design or object on the part of the Borums. The controlling question in the case is, whether the allegation of fraud as against the Borums and Stone is made out by the evidence? It is insisted for complainants that as the .attachment bill is sworn to as well as the answer, the result is that the bill and answer only make up the issue, and that as the allegations of the bill are sustained by one witness, that is sufficient to entitle them to a decree. The rule relied on was first laid down in our State in the case of Searcy v. Pannell, in the Federal District Court, and reported in Cooke’s Reports, (Cooper’s edition) 81. That was an injunction bill, in which the complainant alleged and swore to specific facts as grounds for relief. These allegations were answered on oath and specifically denied. Judge McNairy, after stating the
The general rule thus recognized has been ever since followed by this court. But it does not follow that the rule applies in every case in which the bill has been sworn to, and either an attachment or injunction obtained thereon. The rule rests upon the assumption that there is oath against oath, as to the same facts, that is, if the complainant, of his own knowledge, swears that certain facts are true, and the defendant, on his own knowledge swears they are not true, or denies their truth, that makes a case of oath against oath, and the two oaths neutralize each other, the complainant under the of
Such we regard the present case. The bill is hied by complainants who live in another State, and who profess to have no personal knowledge of the facts constituting the fraud ^alleged, .but they make their allegations upon their belief of their truth, and an agent swears to such of the facts as are stated on his own knowledge without specifying what facts he thus swears to, and swears to his belief as to those facts stated on information On the other hand the defendant responds, on his own knowledge, as to every allegation of fraud, and specifically and expressly denies each and all of them. It will not do to hold without exception that because the bill was sworn • to and an attachment obtained, therefore the answer on oath, although positive and definite in its responses and denials, merely makes an issue. The legal effect of each answer must be determined by looking to the real character of the sworn allegations of the bill, and that of the sworn responses of the answer. Perkins v. Collins, 2 Green’s Ch. R., 487. When the allegations of the bill are direct and positive, based on the
In this case P. S. Borum, the surviving partner of J. W. Borum & Bro., was a defendant. He was examined as a witness by complainants, and he testified as to statements made by Stone in his lifetime, which statements were proven with the view of enabling the conplainants to obtain a judgment against Stone’s administrator.
The policy of the Legislature under consideration is fully manifested by the enactment in sec. 3813cZ, that in all civil courts in this State no person shall be incompetent to testify because he or she is a party to, or interested in the issue tried.”
The object was to place all litigants in the civil
In the case before us we can see that the interest of complainants and P. S. Borum was not antagonistic, and therefore they could not legally call on him to testify for them. But we can see that the interest of the administrator of Stone was antagonistic to that of P. S. Borum, and therefore the administrator of Stone could lawfully have called him to testify.
It follows that the Chancellor erred in holding P. S. Borum to be a competent witness for complainants.
The result is that the decree of the Chancellor setting aside the sale of the goods to Stone as fraudulent and void, and rendering judgment against his administrator and the sureties in the replevin bond, is erroneous and must be reversed, but the judgments of the several complainants against P. S. Borum, surviving partner, are affirmed.
The costs of this court and the court below will be paid by complainants.