
    Benjamin Etheredge vs. Nelly Partain and others.
    Evidence— Witness — -Practice—Answer.
    A defendant is a competent witness for his co-defendants upon all issues in which he has no interest, though upon other matters a decree might be rendered against him — the contingent liability for costs not being sufficient to exclude him.
    The depositary of certain choses, upon bill filed against her and others who claimed title through her, deposited the choses with the Commissioner to abide the event of the suit, and then filed her answer disclaiming all interest, held, that she was a competent witness for her co-defendants upon the issue whether the plaintiff or the co-defendants were the owners of the choses.
    The answer of a defendant who is the depositary of a chattel claimed by the bill, is, it seems, evidence for co-defendants, who claim title through the depositary.
    BEFORE DARGAN CH., AT EDGEFIELD,
    JUNE, 1857.
    - Dargan, Ch. Burdett Etheredge, the plaintiff’s intestate, (who died on the 22d July, 1855,) had never contracted matrimony. He had formed an illicit connection with Nelly Partain, and by her he had two illegitimate sons, known as Jacob B. Partain and Noah Partain, who are still under the age of twenty-one years, and who are also defendants in this case — properly represented by guardian ad litem. The intestate had other near and legitimate relations; namely, his brother, his administrator and the plaintiff in this bill, his sister Jemima, the wife of Hancock Southard, and the children of his predeceased sister, Sarah Corley, who was the wife of Nathaniel Corley, all of whom are parties to these proceedings.
    The intestate, a short time before his death, ivas possessed of an estate worth some twelve thousand dollars, consisting of about nine thousand dollars, four slaves, and an inconsiderable amount of live stock and household furniture. The estate, with the exception of the choses in action, was taken possession of by the administrator. The choses in action, with the exception of an open account of no great value, consist of notes and securities, amounting without interest to $9,000, or near that sum, and are in the possession of the defendant, Nelly Partain, who claims the right to retain them in her possession, alleging that the intestate had in his life given them to her two sons, the said Jacob B. and Noah Partain. The bill was filed to compel her to deliver said notes and securities to the administrator, who is the plaintiff, and for discovery and account of the same.
    The gift set up in the defence, is alleged to have been by parol. The consummation and validity of the alleged gift is the only question in the case. It is purely a question of fact, and must be determined by the evidence.
    The evidence is plenary, that the intestate always acknowledged his illegitimate children from their birth; that he exhibited towards them marks of paternal affection; that they, with their mother, lived with him, in his house, for many years previous to his death in family relations; that he sent them to school; that he supplied all their wants; that he treated them as fathers commonly do their lawful children ; and that he spoke of them uniformly from their birth to the end of his days, as the destined inheritors of his estate, and of his intention at his death to bestow upon them his entire property. These facts do not admit of any controversy or doubt. The only question is, whether he has carried out, in a manner sufficiently formal to make it valid and operative, his unquestionable intention.
    I will say, by way of preliminary remark, that though for reasons of policy, bastards are put by the law under many disabilities, and are under the ban of public opinion, (and this is all right, and as it should be,) yet neither the rigorous edicts of the law, nor the maledictions of religion can silence the voice of nature in the fathers bosom, nor prevent him from loving his innocent offspring, who for his own sin, are ushered into the .world with a Stigma attached to their name. I think that the father of illegitimate children is under a high moral obligation, if able to provide for them, and to give them religious, moral and intellectual education, that they may be enabled to soar above the low estate in which the accident of their birth has cast them. This, of course, is not to be done at the expense and in disregard of higher and more sacred obligations. This is the best reparation he can make for being instrumental in inflicting upon them the disgrace and the disabilities which must more or less attend them through life. Where there is a lawful wife, and lawful children, the law does not permit the father and the husband to bestow his property except to a certain extent, upon the object and fruit of his unlawful affections. But these objects of a higher and more sacred obligation out of the way, it is not a monstrous 'or unnatural thing for a father to desire to provide for his illegitimate children, and to give them the preference over his collateral relations. It is an act which morality does not condemn nor the law inhibit. If, therefore, the intestate, in this instance, has disposed of the greater portion of his estate in favor of his illegitimate children, as is alleged, he has done an act not condemned by morality, religion or the laws of the country.
    Again, I say by way of preliminary remark, that if a man makes a disposition of his property in conformity with his previously declared intentions, and his fixed purposes, the allegation that he has made such a disposition is no great or startling demand upon our belief. And when it is alleged, that an act which is proper in itself, which the dictates of morality and the instincts of nature alike prompt him to do, and which act is also in conformity with his uniform, repeated, and emphatically declared intentions, surely it does not require such a high degree of evidence to convince the judicial mind, that such act has been done. It is half proved at the commencement of the enquiry. These views received strong support; indeed are avowed in some of our decided cases. Power 
      
      vs. Stuart, 1 McC. 504; Blakeney vs. Jones, 1 Bail. 141; McLure vs. Lockport, 1 Bail. 117; Wilson vs. Blasingame, 1 N. & McC. 233.
    On looking into the evidence in this case, it will be seen that there is some, nay, much contradiction as it bears upon the question of ihe gift. But in my judgment the great preponderance of the evidence is in favor of the gift. Besides Nelly Partain herself, to whom the delivery of these securities is alleged to have been made, there was no witness of the gift. She fully (so far as her testimony may be considered to be entitled to belief) sustained the gift according to the allegations of her answer, and in all its details. The plaintiff adduced witnesses for the purpose of proving the infamy of her character. But with the exception of her long cohabitation with the intestate and of her having borne two illegitimate children, there was nothing proved against her character. On the contrary, a number of the witnesses testified that as to veracity, her character was good. In general, when women lose the cardinal virtue of their sex, their whole moral being becomes utterly degraded and weak. But there are exceptions and the loss of chastity is not always followed by the loss of every virtue. On the contrary, there are memorable instances of women who have led the life of courtesans, who have been found to possess high and lofty virtues, and who have been distinguished for truth and integrity, and who have performed trusts under circumstances of temptation with the most scrupulous fidelity and punctilious honor. However, I have no reason for believing Nelly, though certainly under no bad repute as to veracity, a Ninon de l’Enclos; and I should not have been willing in an issue like this, (when her own children were the parties,) to have reposed upon her evidence with such confidence as to have based my decree upon it. But I am unable from any thing I have seen, to withhold all credit from it, and to deny it any weight.
    There were several witnesses who proved declarations of the testator, wherein he acknowledged that he had done exactly what Nelly testified that he did, and what he himself undoubtedly did previously declare it was his purpose to do; that is to say, that he had given the notes to Nelly Partain for his two children. I must qualify this last observation. There was no proof of a declaration of an intention to give the notes to Nelly Partain for the children. I mean that the gift to the children was in conformity with his previous declarations.
    The declarations of intestate going to establish the gift, was proved byr Col. Denny, who was the principal witness on this point. If his testimony is to be believed, it leaves no doubt upon the subject. There was an attempt to weaken the force of his .evidence bjr showing the inconsistency of his statements as a witness, with what he had stated on a former occasion, or occasions. There was also an attempt to assail his character, for the purposb of putting down his evidence. The inconsistency, if any, was not gross, and the attack upon his cháracter failed. The imputations upon him, grew out of one single transaction. What it was I did not learn. There were but few who thought his character sullied by this transaction; many thought him a man of first rate character, and none said they would not believe him on oath. After all, similar declarations of Burdett Etheredge were proved by other witnesses not assailed or deemed objectionable; and he only proved what the intestate was morally bound to do, and what he frequently said he would do. When it is proved clearly and conclusively by parol that the alleged donor has said, that he has given a chattel, it is sufficient, if the witnesses are tobe believed; and in such case it is presumed that all the forms necessary to the validity of such parol gift have been observed.
    It is urged, that this story of the parol gift by the intestate to, his two illegitimate sons, by which he endowed them at once with three-fourths of his estate, is highly absurd and incredible. If he had survived, he would have been deprived of nearly all his estate, and dependent upon his children. It was certainly not prudent. It would have been wiser for him to have made the disposition by a revocable instrument, or to have retained a life estate. The only effect of this view of the case would be to require a somewhat more stringent proof. And giving this argument its proper weight, the case is sufficiently made out. Besides, instances of this kind of improvidence on the part of parents, are of daily occurrence. Many have fallen under my personal observation. I but yesterday tried a case in which litigation grew out of a transaction very similar, and in which a person had committed herself with too much confidence to the tender mercies of an adopted child. A similar instance of misplaced parental confidence in the fidelity and loyal affection of favored children has been seized upon by the great tragic poet, as the basis of the most powerful drama, that has ever been written iu the English language, or in any language. I am, therefore, not to be told that all this array in support of this parol gift, is to be rejected and disbelieved, because Burdett Etheredge, the donor, did an unwise act in making the gift.
    I need not cumber this opinion further with the details. The evidence is herewith filed, and may be referred to by any one whose duty or interest it is, or may be to investigate it. In my opinion the parol gift of the choses and securities alleged to have been made to Nelly Partain for her two children, Jacob B. and Noel Partain, and a description of which is contained in the schedule filed as exhibit Á., of the said Nelly Partain’s answer, is sufficiently established by the evidence. And such is the judgment and decree of this Court.
    It is further ordered and decreed that the bill be dismissed.
    The plaintiff appealed on the grounds:
    1. Nelly Partain, being a party defendant, having put in her answer to the bill, and having, by process of subpcena, procured^the attendance of a large number of witnesses at two of the sittings of the Court, had incurred such liability for the costs and expenses of the suit, as rendered her utterly incompetent to testify on the behalf of the defence. She had, moreover, a direct interest in sustaining the gift set up by her answer, as it entitled her to have and hold the notes and single bills the subject of that gift, to collect the moneys thereby secured, and to retain the same until her natural sons, Jacob and Noah, should attain, respectively, to the age of twenty-one years. Her testimony ought, therefore, not to have been admitted, and without it there was no sufficient proof of the alleged gift-
    3.Even if competent, the defendant, Nelly Partain, ought not to have been admitted as a witness for the defence, because no notice that she would be proposed as such witness had been given to the plaintiff or his solicitors,'and the effect of her being admitted to testify in the cause, operated as a surprise upon the plaintiff, and necessarily subjected him. to grievous disadvantage.
    3. The witness, Nelly Partain, was contradicted in such and so many important particulars, labored under a bias so strong in favor of the defence, and the mode, extent, subject and circumstances of the alleged gift were so extraordinary, that her testimony should have been wholly rejected, except as to the particulars in which she was corroborated by other witnesses; and if the evidence thus regarded be duly weighed, it is respectfully submitted that the alleged gift amounted, at the uttermost, to no more than a “ donatio mortis causa,” which became wholly inoperative upon the recoverv of Bur-dett Etheredge from the sickness by which he was then visited.
    4. The alleged gift as to the notes dated subsequently to February, 1855, is proved solely by the unsupported testimony of Nelly Partain, and such proof, it is respectfully submitted, is wholly insufficient.
    5. As there was much conflicting testimony touching the alleged gift, and as such conflict involved the credibility of the witnesses examined, it is respectfully submitted that an’ issue at law upon the question of the alleged gift should have been directed by the Chancellor on the Circuit, and ought yet to be ordered by the Appellate Court.
    
      Carroll and Bacon, for appellant.
    
      Jones and Blake, contra.
   The opinion of the Court was delivered by

Dunkin, Ch.

Upon a question purely of fact, this Court would be indisposed to disturb the conclusions of the Chancellor, unless some error has been committed in the admission or rejection of testimony. It is urged that Nelly Partain was incompetent as a party defendant on the record, and as having a direct interest in the issue.

The general rulé upon this subject is stated by Mr. Mad-dock, 2 Madd. 416; that, unlike the practice of the courts of law, a defendant may, in equity, examine a co-defendant, if he .is not concerned in interest, as if he be merely a trustee or disclaims; and, for the last illustration, he cites a note to 2 Ch. Cases, 214, said to be by Sergeant Maynard. The rule that a defendant may be a witness for his co-defendant, where his interest is not to be affected by his testimony, is recognized by our own 'courts in Wright vs. Wright, 2 McM. 185, and Glenn vs. Wallace, 4 Strob. Eq. 149. Mere contingent liability for costs, as a party to the record, (costs being always within the discretion of the Chancellor,) has never been held sufficient to exclude a witness not otherwise interested. A cause in equity frequently involves several distinct issues. The inquiry always is as to the interest of the witness in the matter to which he is proposed to be examined; “and a defendant (says IVEr. Maddock, ut supra,) having been examined as a witness, may have a decree against him upon.other matters to which he was not examined.” In the well considered case of Nevill vs. Demeritt, 1 Green Ch. R. 321, cited also in a note to 2 Dan’l Ch. P. 1044, it is held that “an order allowing a defendant to examine his co-defendant as a witness will always be granted upon a suggestion that the party to be examined has no interest in the cause, leaving the question of interest to be settled at the hearing upon the proofs}’

The plaintiff is the administrator of Burdett Etheredge, deceased. The declared purpose of the proceedings is to obtain possession of certain notes and single bills to the amount of some nine thousand dollars, belonging, it is alleged, to the estate of the intestate. A general description of the papers claimed is filed with the bill, and it is charged that the plain-tiíf has no adequate remedy at law by reason of Nelly Par-tain’s insolvency; plaintiff prays a more perfect description of the papers and security for the forthcoming, &c., but makes no charge or suggestion that Nelly Partain had collected, or attempted to collect, any part of the choses in action. The bill was filed 6th November, 1855, and on the next day an order was made that Nelly Partain should give security for the forthcoming of the papers. Immediately after the order, instead of giving security, she forthwith deposited with the Commissioner in Equity the several choses in action claimed by the plaintiff; and afterwards filed her answer, containing a copy of the several choses in action, and formally disclaiming any interest therein. After this statement, all of which is verified, not by any testimony of Nelly Partain, but by the record and the papers accompanying the record, it is not perceived in what way the witness had any personal interest at the time of her examination in the only decree which the plaintiff sought, to wit: the specific delivery of the choses in .action. Doubtless, she entertained a strong bias in favor of her children; but this effects only her credit, and was duly considered by the Chancellor who heard the cause.

In any view of the subject, however, it is entirely too late for the plaintiff to object to the statements of Nelly Partain in relation to this transaction. If Nelly Partain had possession of choses in action to which he was entitled, and her insolvency authorized his appeal to this Court, he had only to say so in a bill filed against herself. But the scope of the plaintiff’s bill is far more extensive. He makes other persons party defendant, sets forth the alleged gift on the part of the intestate for the benefit of his children, which he charges to be groundless and unfounded, and prays that the defendants may be required, upon their corporal oaths, to answer all and singular the premises, &c. The answer of Nelly Partain, thus interrogated, sets forth, substantially, all the matters in rela7 tion to the gift to which she subsequently testified. Mills vs. Gore, 20 Pickering’s Rep. 28, was a bill in equity to compel the re-delivery of a deed deposited in the hands of the defendant by the plaintiff and another person, who also claimed the deed. It was held, generally, that where the plaintiffs call upon a defendant for a discovery, requiring him to answer, under oath, fully to all matters charged in the bill, they cannot be allowed to say that his answer is not testimony. It was also ruled that the answer of a defendant in a bill in equity, which is responsive to the bill, is admissible in evidence in favor of a co-defendant, more especially where such co-defendant, being the depository of a chattel claimed by the plaintiff, defends himself under the title of the other defendant. See also the opinion of the Supreme Court, delivered by Chief Justice Marshall, in Field vs. Holland, 6 Cranch, 8.

Without inquiring, therefore, whether the other evidence in the cause, independent of the statements of Nelly Partain, was sufficient to establish the gift, we are of the opinion that the decree of the Chancellor was well sustained by competent proof, and that the appeal should be dismissed. It is so ordered and decreed.

Dargan and Wardlaw, CC., concurred.

FLppeal dismissed.  