Maxwell v. Harrison , 8 Ga. 61 ( 1850 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Was the amendment moved for by the plaintiff allowable? We think it was. The true criterion for determining whether an amendment is admissible, we take to be this — whether the amendment proposed is another cause of controversy, or whether it is the same contract or injury, and a mere permission to lay it in a manner which the plaintiff considers will best correspond with the nature of his complaint, and with his proof, and the merits of his case ?

[2.] For, while the plaintiff cannot introduce an entirely new cause of action, he may, nevertheless, add a new count, substantially different from the declaration, provided he adheres to the original cause of action. Accordingly, it has been held that, in an action for a legacy against one charged as executor, the plaintiff may amend, by charging him as devisee. Leighton vs. Leighton, 1 Mass. R. 433.

[3.] Here, it is proposed to strike out the words “ as trustee, &c.” wherever they are added to the name of the defendant, so as to let the suit stand against him individually ; and we can see no objection to it. Trover will not lie against a trustee, as such; for no one can commit a tort in his representative or fiduciary character. He may defend, however, under his title as trustee, whether sued in that capacity br not. Had the defendant made it appear that he was surprised on account of the amendment, the Court would have continued the case, at the instance of the amending party.

[4.] Were the declarations of Mrs. Cain, the former owner, and from whom both plaintiff and defendant derive title, good, as to whom Caroline belonged, made before she conveyed the girl to Maxwell, for the use of Mrs. Bozeman ? The testimony is contradictory as to the possession of the negro, when these declarationá were made. Some of the witnesses testify that she wás in the possession of Harrison, the plaintiff; others, that she remained with Mrs. Cain all the while, and until her death. All agree, however, that the declarations were made before the deed of gift was executed to Maxwell; and inasmuch as he took a conveyance from Mrs. Cain, subsequent to these admissions, he, it would seem, would be estopped from denying property in the declarant. If, then, they were made when it was against her interest, and before the adverse title accrued, they would be competent evidence. Wright, 441. 4 Ala. 40. 4 Dev. & Batt. 117. 4 Miss. 8. 5 Miss. 28. 2 Spear, 75. 1 Dev. 3. Jones vs. Dabbs, Geo. Dec. part 1, 44. In this last case, the Court hold, that where property levied on by execution, is claimed by a third person, the declaration of the defendant in execution, prior to his being defendant, may be given in evidence, to sustain the claimant’s title — such declarations being presumptively against his interest. It will be perceived, that this is not in conflict with the decision of this Court, as to the sayings of the defendant, after the relation of plaintiff and defendant has been created.

It is certainly true, that the ownership of property is a conclusion of law, from the evidence. But the testimony objected to was, that the witness never heard any other person than Harrison claim the negro Caroline, while he had her in possession, and exercised the ownership. The object of the proof was, the negation of any adverse claim, at or during a particular period, viz. while the plaintiff had her in possession, using her as his own.

[5.] Harrison having sued out a possessory warrant, under the statute, against Bozeman, Maxwell was called on to testify on the trial. He stated that he, and not Bozeman, had the right to control Caroline; and that he would not give her up to Harrison, although the decision might be in his favor. This testimony was objected to, upon the ground, that the warrant should be produced, and the evidence of the presiding Magistrate ; and for the additional reason, that these admissions of Maxwell were made for the purposes of that proceeding alone, and that it was not competent to use them for any other purpose. We apprehend that, in order to prove what a witness swore to on a particular trial, it is not necessary to produce the record of the case. The evidence sought to be adduced, is de hors the record; and moreover, that it is not competent for a witness to limit or restrict his testimony to the particular trial, for which it is offered. He is bound, by the obligations of his oath, to tell the truth. And that his evidence, thus elicited, in a judicial proceeding, or even in a voluntary affidavit, may be used as evidence against him, as an admission of the facts contained therein, is well settled, by all the authorities. 1 Ala. Rep. 585. 4 Dev. & Batt. 124. 10 Shep. 69. And even the admissions of trustees, holding the legal title to property, and who are never presumed to make admissions adverse to the interests of those for whom they act, are competent evidence. 3 Hemph. 472.

"We see no objection to the testimony of Watts, as to the sanity of Mrs. Cain ; his opinion being accompanied, as it is, with the reasons upon which it is founded. It comes fully within the rule laid down by this Court, in Potts vs. House, 6 Geo. Rep. 324.

[6.] Two grounds were occupied in the motion for a non-suit. 1st. That the plaintiff had shown no property in himself. 2dly. That he had proven no conversion by Maxwell.

Several of the witnesses testified to the acknowledgments of Mrs. Cain — that she had given the girl to Harrison — that she belonged to him — and that the donor had parted with the possession and dominion of the slave. This was certainly enough to carry the case to the Jury. As to what constitutes a conversion, this Court has repeatedly held, that possession, with a claim of title adverse to that of the true owner, is sufficient; and this is undoubtedly the doctrine of the books. 2 Dev. 130. 1 McCord, 504. 1 N. M. 592. 1 Bailey, 546. 7 Johns. 254. 10 Ib. 172. 5 Cowen, 323. The declarations, therefore, of Maxwell, on the trial of the possessory warrant, that he had the right to control the slave, and that he would not give her up, even if possession was awarded by the Court to Harrison, amounts to a conversion in law. And as it respects the possession, it was clearly in Maxwell, as trustee. The possession of Mrs. Bozeman, the cestui que trust, was permissive only, and was, in fact, his possession.

[7.] The Court, in its charge to the Jury, toward the conclusion, assumes the law to be, that a remainder in slaves, to take effect and be enjoyed after a life estate, may be created by parol; whereas, the very contrary was ruled by this Court, in Kirhpatrick vs. Davidson, 2 Kelly, 297. And as there was evidence to support this charge, and the misdirection may have controlled the verdict of the Jury, we are compelled, reluctantly, to remand this cause for a new trial — upon this ground alone — affirming the judgment upon all the other points made in the bill of exceptions.

Judgment reversed.