CASES

IN THE

SUPREME COURT

OF

GEORGIA.

MAXWELL V. HARRISON.

[8 GEORGIA, 61.]

TRUE CRITERION FOR DETERMINING WHETHER AMENDMENT TO COMPLAINT IS ALLOWABLE is, to inquire whether the proposed amendment is another cause of controversy, or is upon the same contract or injury.

WORDS "AS TRUSTEE" MAY BE STRICKEN OUT OF COMPLAINT wherever they are added to the name of the defendant, so as to let the suit stand against him individually.

DECLARATIONS AGAINST INTEREST made by the party from whom the defendant afterwards accepts a conveyance of the property are competent evidence against defendant as to the ownership of such property, whether the declarant were in possession at the time the declarations were made or not.

OWNERSHIP IS CONCLUSION OF LAW FROM EVIDENCE.
TESTIMONY IS NOT INCOMPETENT AS CONTAINING CONCLUSION OF LAW,

when a witness swears that he never heard any other person than plaintiff claim the property while plaintiff had possession and exercised ownership; and such testimony is introduced merely to negative the existence of an adverse claim while plaintiff was in possession. RECORD OF CASE NEED NOT BE PRODUCED TO PROVE TESTIMONY OF WIT

NESS given upon trial of such case. Such evidence is dehors the record. TESTIMONY OF PARTY MAY BE USED AS EVIDENCE AGAINST HIM, as an admission of the facts contained therein, when given under oath in a judicial proceeding, or even in a voluntary affidavit.

WITNESS, NOT PHYSICIAN, MAY GIVE HIS OPINION AS TO PERSON'S INSANITY, when his opinion is accompanied with the reasons upon which it is founded.

MOTION FOR NONSUIT, ON GROUND THAT PLAINTIFF HAD SHOWN NO PROP

ERTY IN HIMSELF, should be overruled where there is testimony of several witnesses to the acknowledgments of the donor, that she had given the property to plaintiff, that it belonged to him, and that the donor had parted with the possession and dominion of the property.

TO CONSTITUTE CONVERSION, possession, with a claim of title adverse to that of the true owner, is sufficient.

REMAINDER IN SLAVES, to take effect and be enjoyed after a life estate, can not be created by parol.

TROVER by Harrison against Maxwell for a negro girl, Caroline. Harrison claimed under a parol gift made in 1843, from Mrs. Cain, his mother. Maxwell claimed under a voluntary deed to him, made in 1846, by the same Mrs. Cain, in trust for Catharine Bozeman, her daughter. Judgment for plaintiff, and defendant brought error. The points relied upon by the plaintiff in error are sufficiently stated in the opinion of the court, with the following exception: Watts, referred to in the opinion of the court, was not a physician, but was allowed to testify as follows: That in his opinion, from what he saw of her (Mrs. Cain), and heard her say, she was not at all times in her sound mind-being some seventy-five or eighty years old. In a conversation he had with her on one occasion, at the house of plaintiff, Mrs. Cain would repeat the same thing over and over again, and would vary her statements of the same circumstances, in complaining of the treatment she had received from her children.

Lyon, for the plaintiff in error.

E. R. Brown, for the defendant.

By Court, LUMPKIN, J. 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.

For, while the plaintiff can not 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 v. Leighton, 1 Mass. 433.

Here it is proposed to strike out the words "as trustee," etc., 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 or 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.

Were the declarations of Mrs. Cain, the former owner, and from whom both plaintiff and defendant derive title, good, as to whom Carolina 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 declarations were made. Some of the witnesses testify that she was 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: Ritchy v. Martin, Wright, 441; Oden v. Stubblefield, 4 Ala. 40; May v. Gentry, 4 Dev. & B. 117; Foster v. Nowlin, 4 Mo. 18; Irving v. Irving, 5 Id. 28; Caldwell v. Wil801, 2 Spear, 75; Morisey v. Bunting, 1 Dev. L. 3; Jones v. Dalby, Ga. Dec., pt. 1, 44. In this last case, the court held, 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.

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 dehors 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: Hallett v. Obrien, 1 Ala. 585; Den ex dem. Mushat v. Moore, 4 Dev. & B. 124; Davis v. Keene, 23 Me. 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: Helm v. Steele, 3 Humph. 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 v. House, 6 Ga. 324.

Two grounds were occupied in the motion for a nonsuit: 1. That the plaintiff had shown no property in himself. 2. 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: Dowd v. Wadsworth, 2 Dev. L. 130 [18 Am. Dec. 567]; Fowler v. Stuart, 1 McCord, 504; Reid v. Colcock, 1 Nott & M. 592 [9 Am. Dec. 729]; Hutchinson v. Bobo, 1 Bailey L. 546; Bristol v. Burt, 7 Johns. 254 [5 Am. Dec. 264]; Murray v. Burling, 10 Id. 172; Reynolds v. Shuler, 5 Cow. 823. 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.

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 Kirkpatrick v. Davidson, 2 Ga. 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.

OPINIONS OF NON-PROFESSIONAL WITNESS, when admitted to prove in. sanity: See note to Dickens v. Barber, 6 Am. Dec. 58; Grant v. Thompson, 10 Id. 119; Morse v. Crawford, 44 Id. 349, collecting the prior cases in this series; and Potts v. House, 50 Am. Dec. 329.

OWNERSHIP OF PROPERTY, A CONCLUSION OF LAW: See Dunlap v. Berry, 39 Am. Dec. 413.

DECLARATIONS AGAINST INTEREST, MADE BEFORE ADVERSE TITLE ACCRUED, ADMISSIBLE.-The principal case is cited as authority to this effect in Cloud v. Dupree, 28 Ga. 173; Sterling v. Arnold, 54 Id. 693; Bonner v. Metcalf, 58 Id. 237; Saulsbury v. McKeller, 59 Id. 305; Settle v. Alison, post, 393. As to when such declarations are admissible, see Masters v. Varner's Ex'rs, 50 Am. Dec. 114; Dow v. Jewell, 45 Id. 371. For the New York rule as to admission of the declarations of a former owner of chattels, see note to Paige v. Cagwin, 42 Id. 80; see also Abney v. Kingsland, 44 Id. 491. Admissions of a party against his interest, though he be only a trustee, are admissible: Tenney v. Evans, 40 Id. 194, with note referring to the prior cases on this subject in this series.

RECORD OF CASE, WHEN MUST BE PRODUCED: See Kenan v. Holloway, 50 Am. Dec. 162; Medlin v. Platte County, 40 Id. 135; Coffman v. Hampton, 37 Id. 511.

CONVERSION, WHAT CONSTITUTES: See Ragsdale v. Williams, 49 Am. Dec. 406, and note referring to prior cases in this series.

REMAINDER IN CHATTELS.-It is well settled that a remainder may be created in chattels: Note to Smith T. v. Bell, 17 Am. Dec. 798. But such a remainder can not be created after a life estate, where the life tenant has full power of disposal: Id.; and Davis v. Richardson, 31 Id. 581. The principal case is cited as authority to the effect that remainders in chattels can not be created by parol, in Burton v. Black, 32 Ga. 59; and Alderman v. Chester, 34 Id. 156.

NONSUIT, WHEN Granted, and UPON WHAT GROUNDS: Dain v. Cowing, 39 Am. Dec. 585, with note collating the prior cases in this series; Lillie v.