6 Ga. 365 | Ga. | 1849
By the Court.
delivering the opinion.
The second exception to the decision of the Court below is, the sustaining the objection taken by the plaintiff in execution, to that portion of the answers of Messrs. Charlton & Ward, offered by the claimant, which refers to the memoranda and entries made by them on their books, and their statement made to the Central Bank, as appears therefrom.
The Central Bank is a public institution, and the officers thereof are public officers. By the Act of 1830, the certificate of any" public officer, under his hand and seal of office, either of this State or any County thereof, in relation to any matter or thing pertaining to their respective offices, or which, by presumption of law, properly pertains thereunto, shall be admitted as evidence before any Court of Law or Equity in this State. Prince, 220. The officer examined, not having any personal knowledge of the facts about which he was interrogated, as to the contents of the books of the Bank, a certified copy from the books, under the hand and seal of the officer, would, in our judgment, have been competent, and the best evidence to prove the transactions of the Bank with its debtors, so far as the same is confined to the books of the Bank. The evidence offered was properly rejected by the Court below.
When one party introduces a witness and examines him, the other party is entitled to cross examine such witness, if he desires to do so, but he is not compelled to cross examine him; nor do' we hold he is compelled to read the cross questions and answers of the witness, examined by commission; but, having put the cross’questions to the witness, the other party is entitled to read them and the answers thereto, and so we understand the Court below to have ruled. Whether the witness be cross examined or not lie is the witness of the party introducing him. We find no error in the record so far as this exception is concerned.
This question arises under the peculiar enactments of our claims laws and if it was a new question in our Courts, it might be somewhat difficult to assign any technical legal reason for rejecting, the
The sixth exception taken to the decision of the Court is, to the rejection of the declarations of Thomas Williams, the defendant in execution, in favor of the claimant, while in possession of the property. The same reasons which we have assigned for the rejection of the defendant in execution, as a witness in favor of the claimant, apply with equal force to the rejection of his declarations in his favor. This defendant, as is the case with almost every defendant in execution in a claim case, manifests a wonderful alacrity to make evidence for the benefit of the claimant’s side of the question; hut as we hold him inadmissible as a witness in behalf, of the claimant, the same rule of policy will, also, exclude his admissions in his favor.
The seventh exception is, to the overruling the claimant’s objection to the testimony of Warren E. Sanders, who was offered by the plaintiff, to prove that Thomas Williams, the defendant in execution, had rented to him, for the year 1847, the lot of land specified in the mortgage, together with the negroes levied on, and had paid him the rent therefor. There is no evidence furnished by the record before us, that' the land included in the mortgage had ever heen sold under the judgment of foreclosure, and until such sale the defendant’s title to the land was not divested, and he had the right to rent it and receive the rent therefor; and such acts, on his part, would not be evidence of fraud as against the
, The witness stated, that when the trade for renting the land was finally closed, Williams did not say any thing about his being the agent for any one in renting the lot, but that they had several conversations previously about renting the land, and in negotiations for rent. Claimant then asked the witness if in the previous negotiations about the rent, Williams did not state to him he was acting as agent for another. This evidence might have explained and rebutted the presumption, sought to be inferred from the evidence, that he rented the- land as his own property. The negotiations for the rent, and the contract of renting, all appertained to the same transaction, and ought to have been received as explanatory of it.
The eighth exception is, to that part of the charge of the Court to the Jury, which relates to the possession of the defendant in execution, of the property, after the foreclosure of the mortgage and the sale of the property by the Sheriff.
The ninth and last exception to the decision of the Court below, is to that portion of the charge of the Court to the Jury,
The instruction of the Court is, that the Jury must believe that the claimant had shown payment of the items in the agreement, which was the consideration of the mortgage, and that if the claimant had, not shown such payment, the presumption of fraud was not removed. .
Nor do we hold, even had the burden of proof rested on the claimant, that it was absolutely necessary all the items of indebtness in the agreement should have been proved. The effort is to impeach the mortgage under which the claimant derives his title to the property, on the ground that it is fraudulent as against creditors; and the want of sufficient consideration to support the mortgage, is alleged as a badge of fraud against it.
Fraud may be inferred from circumstances, such as the smallness of the consideration expressed, compared with the fair price of the property conveyed, or the want of proof of any price having been actually paid. Hildreth vs. Sands et al. 2 John. Ch. Rep. 35.
Let the judgment of the Court below be reversed.