Brown v. Redwyne , 16 Ga. 67 ( 1854 )

By the Court.

Benning, J.

delivering the opinion.

What is an “ exhibit ?” Is it a thing belonging to pleading or to evidence ? It is said, in 1 Daniel’s Ch. Pr. 475-6, Marg. “that in stating deeds or other written instruments in a bill, it .is usual to refer to the instrument, itself, in some such words as the following, viz: 1 as in and by the said indenture, reference being thereunto had when produced, will more fully and at large appear’. The effect of such a reference, is to make the whole document referred to, part of the record. It is to be observed, that it does not make it evidence ; in order to make a document evidence, it must, if not admitted, be proved in the usual way; but the effect of referring to it is, to enable the plaintiff to rely upon every' part of the instrument, and to prevent his being precluded from availing himself, at the hearing of any portion, cither of its recital or operative part, which may not be inserted in the bill, or which may be inaccurately set out. Thus, it seems that a plaintiff may, by his bill, state simply the date and general purport of the deed under which he claims, and that such statement, provided it be accompanied by a reference to the deed itself, will be sufficient”.

It is this sort of a reference to a writing, which makes the writing become an exhibit.

The solo office, then, of an exhibit — of making a writing become an exhibit, is to help out a pleading — to help out allegations in a bill or answer, in case it should be found, on the trial, that such allegations do not give some needed particulars of the writing, or do not give the writing with accuracy. It is no part of that office to convert into evidence the writing made an exhibit of, or to be a pre-requisite to the admission of the writing as evidence. If the writing is made an exhibit of, still, it must (unless admitted) be proved, if proved, but not made an exhibit of; still, if in itself legal, and if adapted to the allegations, such as they may be, it is to be received as evidence.

This is what an exhibit is by the law of England — by that law, as it was when adopted by Georgia. Is it any thing different, by the law of Georgia, as that law now stands ?

The Seventeeth Equity Rule says, that “ copies of all deeds, ■writings and other exhibits, shall be filed -with the bill or answer, and no other exhibits shall bo admitted, unless by order of the Court, for some special and good cause shown”. “ No other exhibits shall be admitted” — how admitted? As evidence ? As evidence, no writings, even before the making of this rule, as we have seen, could, by virtue merely of having been mado exhibits of, be admitted ; neither writings, of which copies might have been filed, nor those of which copies might not have been filed. To make these words, therefore, mean to say, that writings, of which no copies have been filed, shall not,, although referred to as exhibits, be evidence, is to make them mean to say what already stood, said by the general law. What, then, do the words mean ? This: No writings shall be “admitted”, received, considered as exhibits — shall be allowed to do the office of exhibits, except those of which copies may have been filed: whereas, the old rule had said, that any writing might be mado a part of a bill, by being properly referred to, without being copied into the bill; this, the new rule, says-that no writing shall, however referred to, become a part of bill or answer, without a copy of it has been filed with the bill or’ answer.

Thus, the new rule is but the old rule, a little contracted.

This being so, if, in bill or answer, the pleader refers to a writing, and professes to file a copy of it, but does not file one, the omission is a defect in pleading, if defect at all — a defect by which he may fail to get all the benefit from the writing, which, had a copy been filed, he might have got — a defect by whieh he will fail to get all that benefit, if, in setting out the writing, so far as he has set it out, he has set it out inaccurately, or has not set out some parts of it which he needs : and thus, being a defect in pleading, when the writing, that of which no copy has been filed, comes to be offered as evidence, the only questions will bo, does the writing fit the descriptive allegation ? may the whole and every part of the writing be contained in the allegation, or. only some part of it be so contained '{ has there hecn accuracy in the description ? If yes may ho answered to these questions, the writing is to he read as evidence — all of the writing, if, as to all of it, the descriptivo allegation is good — part only, if, as to part only, that allegation is good.

?!ow, in the hill in this case, there were allegations to the effect, that St. John & Brown were, in the name of St. John, in Coweta Superior Court, prosecuting an action of ejectment against the complainants in the bill, Redwyne & Elder ; that Eedwyne liad made a deed for the land to Dominick; that Shell, as administrator of Dominick, regularly sold and convoyed the land to Elder: hut no copy of the ejectment or of cither of these deeds, was filed with the hill; and merely for that omission, the originals wore considered by the Court not to he admissible as evidence. But, as we have seen, the admission or rejection of the originals should have been made to turn upon another thing, namely: the nature of the allegations — the allegations aforesaid. And looking to the nature of the allegations, it was such as to make the originals admissible. The allegations were such as to be in the spirit of Lord Coventry’s order, “ that bills, answers, replications and rejoinders, he not stuffed with repetitions of deeds or writings, in haec verba, but the effect and substance of so much of them, only, as is pertinent and material to he set down, and that in brief and effectual terms”. (1 Dnal. Ch. Pr. 469, marg.) Such “stuffing” is expensive and otherwise hurtful. Not a single reason is apparent, why copies of these originals should have been added to the general allegations aforesaid, which give their “ effect and substance”.

The Court, therefore, if so inclined, might, under these allegations, well have admitted the originals as evidence. This the Court would not do, but as a pre-requisite to their admission, required the complainants to amend, their bill, by filing copies of the originals. This was an error, of which the complainants had the right to complain; butitwastho defendants that made the complaint. The defendants excepted to the decision allowing this amendment to be made. They insisted, that in the stage in which the case then was, the case being before the Jury, such amendments could not be made. But a plaintiff “'may, after replication has been filed, and the cause is at issue, have leave to amend his bill, and this ovfcn after witnesses have been examined in the cause and publication passed”. (1 Daniell’s Ch. Pr. 544, marg.)

And the Act of the last Legislature, “to change and simplify the practice and pleadings in this State,” &c, among other things, declares that “parties, plaintiffs and defendants,” “ whether at Law or in Equity, may, in any stage of the cause, amend their pleadings in all respects, whether in matter of form or matter of substance”.

[1.] In allowing the amendments, therefore, the Court did nothing which, as against the defendants in the bill, was wrong.

The order of the Court of Ordinary, granting Shell leave to sell the land, called him the “administrator on tho estate of David Dominick”, and it recited that he had “ given notice, in terms of the law, that he would apply to” that “ Court, for an order to sell all the real estate”, &c.

[2.] This order, the Court was right, as wo think, in holding to bo sufficient prima facie evidence of the -appointment of Shell as administrator..

It is not to be presumed by one Court, that another, concerning matters over which that other has jurisdiction, and in a usual sort of proceeding touching such matters, recites, as true, things which are not true: rather, tlintit recites only such things as are true, is, in the first instance, to be presumed. Is the Court of Ordinary such a Court as not to be entitled to the benefit of a principle so obvious ? If it is, what makes it such? Its being a Court of limited jurisdiction ? Speaking for myself, I must say that I know of nothing sufficient, on this account, to make the Court of Ordinary a Court not entitled to the benefit of such a presumption, that is not equally sufficient to make the Superior Court a Court n'ot entitled to the benefit of the same sort of a presumption. And in this, I think myself supported by much of what was said, if not by what was done, in Tucker vs. Harris, (13 Ga. R. 1.) The Superior Court, itself, has limits to its jurisdiction.

I may, in like manner, say that I am not aware of any law, which makes the minutes of the Superior and Inferior Courts void, if not signed by the respective Judges of those Courts. Certainly the Act which requires such minutes to be so signed, does not say the omission to sign is to render void the minutes. To keep the minutes, is made the duty of the Clerks, not that of the Judges. These minutes, thus kept, the Judges, it is true, are commanded to sign; but should they disobey the command, is the penalty, if any, to fall on them who are the guilty, or upon suitors who are the innocent ? If not upon them, what inducement have they to obey the command, if upon the suitors ? Whence arc they to get their reparation ? How easy to have said, “and unless so signed, the minutes shall be void”. But this the Legislature did not say. What warrant, then, have Courts to say it ? ■ (Pr. Dig. 428.).

The objections'to-the admission of the deed of Shell, as administrator, were — First, That it did not'appear, from the deed, that the administrator had given notice of his intended application for leave to sell. Second, That it did .not appear, from the deed, that the sale of the land had been advertised at the Court-house door.

[3.] As to the first of these objections to it, the order for leave to sell, with its recitals, was an answer; for among those recitals, is one to the effect that Shell, the administrator, “ in terms of the law”, had given notice of such, his intended application. Being contained in the order, and the order being in evidence, it was not necessary that this recital should also be contained in the deed, to make tlm deed admissible as evidence.

As to the second, the testimony of Hackney was an answer to it.

To preserve a notice of this sort, stuck on a Court-house door, after the day of sale has passed, whose duty is it ? Must it not be torn off the door, to make room for other notices and advertisements, that the law is every day requiring to be put there ? The presumption is, that such a notice, as soon as it has discharged its office, perishes.

[4.] That being presumed, in this case, Hackney’s testimony, as to the contents of the notice, &c. was at once admissible. And having been admitted, it was sufficient, as we think, to warrant the introduction of the deed as evidence. And the Courts leaving the question of the sufficiency of Hackney’s testimony to the Jury, if wrong, was wrong merely in giving the defendants more than they were entitled to. We do not, however, say wo think it to have been wrong. As to that, we say nothing.

The Court being requested to charge the Jury, “ that a decree of perpetual injunction” could not be made in the case, “inasmuch as there” had “been but one action of ejectment instituted by defendants, for the recovery of the land”, charged “ that if this objection existed, it should have been taken advantage of by demurrer, or at least, at an earlier stage of the case, and that it” was'then “ too late to insist upon it”.

Was this right ? The Court seems to admit, that if a demurrer had been filed to the bill, on the ground stated in the request to charge, the demurrer must have been sustained.

• The Court denies, however, that the ground had any virtue 'in it, at the late stage of the cause, when the ground was brought to the notice of the Court; — the stage when the Court was in the act of charging the Jury.

Mitford says: “actions of ejectment having become the usual mode of trying titles at the Common Law; and judgments in those actions not being in any degree conclusive, the Courts of Equity have interfered; and after repeated trials and satisfactory determinations of questions, have granted perpetual injunctions to restrain further litigation; and thus have, in some degree, put that restraint upon litigation, which is the policy of the Common Law, in the case of real actions”. And he cites many cases in support of this proposition. (Mitford’s Eq. 144 and note x.)

It appears, therefore, that Courts of Equity “ have interfered, and after repeated trials and satisfactory determinations of questions, have granted perpetual injunctions to restrain further litigation; ■ but it does not appear that they have ever interfered, before there has been such trials, or something, in the estimation of those Courts, equivalent to such trials. And it is now too late for them to begin — at least, it is in Georgia— a State which, by its Constitution, has fenced off its Courts from whatever is legislative territory. Rut if the Courts had the power to enlarge this much questioned — most questionable branch of Equity jurisdiction, ought they to have the will? When A asks a Court to command — “enjoin” B not to sue him, A — to command B not to go into any of the Courts, though open to all men, and complain of him, A, saying but barely this : “A has done me an injury. May it please the Court to command A to repair that injury, or show cause why he will not” — asks a Court to command B not to do towards him, A, what the law says every man may do towards every other man — asks a Court to suspend, in his favor, a law of the land, is it too much for the Court, before granting the request, to require of him, A, to show, beyond the shadow of a doubt, that by the granting of the request, it will hardly be possible for any harm to come to B, whilst to him, A, it will be certain that some, perhaps much, good will come ? Too much to require of him to show B to have repeatedly made that same complaint against him, A, and the complaint, as repeatedly to have been fairly and fully tried, and every time with the same result — a verdict in his, A’s favor: and thus, to show that the complaint, if allowed to be persisted in and pressed to a trial, would, of necessity almost, result in the same sort of a verdict.

[5.] More to be shown than this, if as much as this is not required by the aforesaid rule, taken from Mitforcl, That rule seems to have been admitted to be true, as a general rule, by the Court below: but that Court considered it, not to justify the objection in this case, because the objection, in the opinion of the Court, came too late — came not until the Court was in the act of charging the Jury. Did the objection then come too late ?

The general rule is thus stated by Mitford: “ In general, if a demurrer would hold to a bill, the Court, though the defendant answers, will not grant relief.” (Mit. Plea. 130.) In Bond vs. Murdock et al. (10 Ga. R. 395,) a case, in many respects not unlike this, the rule as thus stated, was, by this Court, acted on. In that case, after the coming in of the answer, the bill was, on motion, dismissed for the want of equity, and the want of equity consisted in this, that the complainant, who was socking to enjoin an ejectment, had never had in his favor a verdict in ejectment.

And, indeed, it may bo well asked, if a Court has no j urisdiction of a case, will not its judgment in the case be worthless ?' The sooner, therefore, it gets rid of such a case the better. It follows, that in whatever stage of a case the objection, for want of jurisdiction, is taken, it is bettor to sustain it then, in that stage, than to let the case go on and end, at last, in a worthless judgment.

[6.] In this case, then, the objection did not come too late. The Court should have charged on this point, as it was requested to do.

And if the Court should so have charged the Jury, it ought not to have charged them that they might find for the complainants, should they believe the allegations in the bill to have been proved: that is, might, according to the prayer of the bill, perpetually enjoin the defendants from suing the plaintiffs in ejectment. In no event, as the case stood — stood without the existence of as much as one final verdict in ejectment in favor of the complainants, could the Jury have been justified in rendering such a verdict as that. The fact, if fact it was, that the deed of St. John to Madden, was made by St. John acting under the belief, that in making the deed, he was only making a bond for titles, instead of a deed — acting in this belief, by mistake, accident or the fraud of Taylor or Madden, could not avail to give the claimants, under that deed, a better right to a perpetual injunction, than the fact, if such had been the fact, that this deed was, beyond question, a good deed — the genuine intended deed of St. John, could have availed to give them such a right. And to give such a right, a deed of the latter sort, without the help of recoveries in ejectment, would not, as we have seen, have been sufficient. If a good deed would not be sufficient, much less would a deed not good, be sufficient.

Was there, then, no equity in this bill ? The bill was not wholly without equity. It is alleged in it, that the witnesses to the deed from St. John to Madden, are dead, and that the complainants cannot adduce proof of its execution, without appealing to the conscience of St. John. That deed is a necessary link in the chain of the complainants — a link, without which they cannot defend the suit in ejectment. They have a right, then, to ask equity to mend the broken link; to ask equity to put that deed in a condition in which they may use it in their defence, at Law, against the ej ectment — to ask equity to declare or decree that deed to be the deed of St. John; and until such decree, to enjoin the Common Law suit. Armed with this decree, they will be as well armed to go into the defence of the Common Law suit, as they would be, were the witnesses to the deed alive and within reach. And this is all the equity they have.

And the Court, instead of telling the Jury what it did, should have told them that the only relief which they could give the complainants, if, by the evidence, they could give them any, would be to find this deed — this alleged deed — to be the deed of St. John.