Thomasson v. Driskell ( 1853 )

By the Court.

Warner, J.

delivering the opinion.

[1.] The first exception taken to the ruling of the Coiu’t below is, the rejection of the certificate of Richard J. Loyall, Clerk of the Inferior Court of Jasper County, as to the taxable property given in by John Driskell, as appeared from the tax-books in his office. The certificate offered in evidence was not under the seal of the Court, or the Clerk’s private seal, -and was properly rejected by the Court. See Act 1830, Prince, 220.

[2.] The second exception is, the rejection of thatpart of Nancy Thomasson’s testimony in which she states the contents of Abram Betts’ will, in relation to the bequest of Mary the child of Sylla. The will itself was the highest and best evidence of the bequests contained in it, and parol evidence thereof was properly ruled out by the Court.

The third exception is to the answer of John C. Gibson, offered to prove that Leah Davis was the daughter of John Driskell, and sister of the defendant, and that she received a legacy under the will of Abram Betts, of a negro named Mary, &c. We do not perceive the relevancy of the first part of the testimony to the question in issue between the parties; but it was properly ruled out by the Court, on the ground that the latter part of it was an attempt to prove by parol the contents of Abram Betts’ will.

[3.] The fourth exception is the rejection of the evidence of Reason Blessett, who was offered to prove the declarations of the defendant, in regard to the property in his possession, as administrator of his father’s estate, sometime prior to his appointment as such administrator. An administrator cannot make any contract which will bind the estate of his intestate after his death. Toller’s Exr’s, 134. Oneal vs. Abney, 2 Baily’s Rep. 317. Upon principle, therefore, the admission of an administrator, made before he was appointed, ought not to be received, to prejudice the rights of heirs and creditors, who are interested in the estate. 1 Greenleaf’s Ev. section 179. Plant vs. McEwen, 4 Connecticut Rep. 544. Doe ex dem, Hornby vs. Glenn, 28 Common Law Rep. 33. There was no error in ruling out this evidence, nor that of Boyce, which comes within the same rule.

[4.] The next exception is, that the Court allowed the defendant to read a portion of the cross-interrogatories of Nancy Thomasson, which had not been read, for the purpose of laying the foundation of impeaching her testimony taken by another commission, and which had been read by the plaintiff, at the trial. This evidence was offered to show to the Court, that the rule which required that the attention of the witness had been called to the particular facts, time,' and place, when, and where the conversation was had, in which they proposed to show by other witnesses, was different from what she stated it, had been complied with.

If the witness had been in Court, it. would have been competent for the defendant to have asked her the same question, for the purpose contemplated; the witness not being in Court, but her answers being there, to,the- proper question propounded.to her, there was no legal objection to read the cross-interrogatories, and her answers thereto for the object stated; especially, as the Court allowed the adverse party to read the direct interrogatories, if they wished to do so. There was no question made, the record states, as to the identity of the witness.

[5.] The testimony of Robinson was also properly admitted to the Jury, though it was objected to, on the ground that he did not state the time the conversation took place with Nancy Thomasson. Mrs. Thomasson stated, in answer to the question, whether she did not in the fall of the year 1827, in Jasper County, at her place of residence, tell John Robinson, that she could not sell Priscilla to him, because she was given to her when a child, and that she raised her; “ that she did tell John Robinson, that she could not sell, nor swap Priscilla, because her father had given the negro to her in his will, but not when she was a child.” Robinson states, that at the house of Mrs. Thomasson and her husband’s, where he stayed all night, Mrs. Thomasson said “ she could not, nor would not part with Priscilla, for the reason her father had given the negro to her when a child, and she had raised her, and she would not part from her on any terms whatever.”

The rule in regard to time and place, &c. applies to the witness whose testimony is sought to he impeached, and not to the witness who is called to prove the contradictory statements. She denied she had ever said to Robinson, or any one else, that her father had given the negro to her when a child. Robinson was introduced to prove she did tell him so. If she ever did tell him so, the time and place is not material; but the time and place in the question, when put to her, to lay the foundation for impeaching her testimony, is material^in order to refresh her recollection, and enable her to- explain the matter if she could.

We find no error in the rulings of the Court in this case, which will authorize us to control its discretion, in refusing the motion for a new trial.

Let the judgment of the Court below be affirmed.