Aiken v. Cato , 23 Ga. 154 ( 1857 )

By the Court. —

Benning, J.

delivering the opinion.

Disposing of the exception to the judgment overruling the motion for a new trial, will be disposing of all the exceptions in the case.

The question, therefore, may be stated to be this, was any one of the grounds of the motion for a new trial a good ground ?

A part of the first of those ¿'grounds, was as follows : “In charging the jury upon the evidence of Saunders as to the sayings of Jacob C. Akin, when he was not in possession of 4he property,” that his sayings was evidence of a gift, but that nothing he afterwards said, could come in to disprove Its being a gift.”

The defendant in the action, Elizabeth Akin, was, it is-true, the widow of Jacob C. Akin; but it is not clear that she claimed as heir to him ; it rather seems, that she did not What took place at the interview between her and the plain-Jiff, Wm. P. Cato, when he demanded of her Patsey, the slave sued for, before the commencement of the suit, is related by a witness, as follows — ; “Defendant said to plaintiff: “you know we never gave you Patsey.” Plaintiff replied ; “I know you did not, but Mr. Akin said, he intended to give me a little negro girl, and my wife' preferred Patsey. That defendant replied; “Mr. Akin never owned Patsey, and had no right to give her away. She was my property, and not the property of Mr. Akin.”

It does not appear that Cato made any objection, or any reply of any sort, to this latter statement of Mrs. Akin.

Now, it cannot be said in the face of this evidence, that it is clear beyond a reasonable doubt that the title by which, Mrs. Akin was defending the action, was a title which she derived by inheritance from “Mr Akin,” her deceased husband ; and was not some title which she had in her own right. And it certainly may be assumed, that the sayings of one person ought not to be allowed to affect another, unless it is clear beyond a reasonable doubt, that that other claims through, or under, him, or stands in privity of some sort, with him.

[1.] This part of the ground then, was in our opinion good.

And what has been said of this part, sufficiently disposes of the other part.

The second ground of the motion was, in our opinion, good.

[2.] “In England, when a competent witness is called and sworn, the other party will, ordinarily, and in strictness, be entitled to cross-examine him, though the party calling him does not choose to examine him in chief; unless he was sworn by mistake; or, unless an immaterial question having been put to him his further examination in chief has been stopped by the Judge.” Green Ev., § 445.

This, we think, is a correct statement of what the English law is, on the point involved in this ground; and what the English law is on that point, our law is, for all the law that we have on the point, is English law. Such as we have by adoption of English law.

[3.] As to the third ground. William S. Akin had no interest in the event of the suit. He was an heir of Jacob C. Akin, so was Mrs. Akin, the defendant, who was Jacob’s widow; so was Cato, the plaintiff, who was Jacob’s son-in-law. But Cato did not sue as the administrator of Jacob; nor was Mrs. Akin sued as the administratrix of Jacob. Therefore, neither he, nor she, represented William S. Akin, in respect to his rights as an heir of Jacob. Butdf neither represented him, then a judgment in favor of either, could not be evidence for, or, against, him, in any suit between him, and either, in respect to the negro; or be evidence for, or, against, any administrator of Jacob C. Akin, in any suit between such administrator, and either, in respect to the negro. A judgment in favor of Mrs. Akin, would not have been at all, a judgment in favor of Wm. S. Akin. It would not have been a judgment to do him the least good. Wm. S. Akin, then, was a competent witness.

The sayings of Jacob C. Akin, the rejection of which is complained of in the fourth ground of the motion, were sayings not against his interest. When a man says of that which another has in possession, that he has loaned it to him, he says rather what is in favor of his interest, than what is against it.

■ The seventh ground has been sufficiently disposed of, in the disposition made of the first ground.

We think, that there is enough in the first, second, and third grounds, to require a new trial. A new trial is accordingly ordered.

This makes it unnecessary to consider the remaining two grounds, the fifth and sixth, and they are such, that it may ■he well enough to leave them without further notice.

'Judgment reversed.