Adkins v. Paul

32 Ga. 219

• Court: Supreme Court of Georgia
• Decided: January 15, 1861
• Status: Published

Opinion

By the Court

Lumpkin, J.,

delivering the opinion.

We are not quite sure that we apprehend the charge of the Court correctly as to the answer of Catharine Paul. It is conceded that it could not be evidence against the co-defendants—the Court, at the same time, holding that it might be taken into consideration by the jury, so far as issue was joined with it by the evidence introduced. That is, if we understand the charge rightly, that it might be received in rebuttal of the proof offered by Adkins and Tennison. Is not this making it evidence against Adkins and Tennison ? We think so most clearly; and yet we hold, and so his Honor concedes, that it cannot be so used. The truth is, the answer of Catharine Paul is evidence against herself, and can be legitimately used by. the complainants to charge her with the assets in her hands, which come from the estate of William Paul, their father. But there is no such privity between her and the other defendants, as to authorize her answers to be used-as evidence against them, or to rebut the testimony of .their witnesses, which is, in fact, to use the answer against. them.

And while the proof outside her answer raises a probability, or at-least a possibility, that the girl, Ann, and her child, were bought with the money, arising from the sale of the land of William Paul, deceased, yet, apart from the answer of Catharine Paul, the evidence would be too unsatisfactory to warrant, perhaps, a finding to that effect.

Why not examine Mrs. Paul on the stand ? Does not she stand indifferent between the creditors and complainants ? Or, at least, is not her interest neutralized? She is liable to her creditors on their judgments. She is responsible to the complainants for the money of the estate, which it is alleged went to pay for Ann and child.

I merely make these suggestions, without holding myself bound by them. Our judgment is, that the Court erred in allowing the answer of Catharine Paul to be used against her co-defendants for .any purpose.

-Judgment reversed.