Judge, a slave, vs. State of Georgia. or they ought to suffer death, then to be committed by the Magistrates, and the Justices of the Inferior Court notified thereof, who take jurisdiction of the offence. These preliminary proceedings before the Magistrates, under the Statutes of this State, before a slave can be put upon his trial for a capital offence before the Justices of the Inferior Court, would seem to be as indispensably necessary, as that a free white person should have an accusation for a capital, or other infamous crime, preferred against him by the presentment or indictment of a Grand Jury. In the case of a slave, the accusation is first made before the Magistrates of the County in which the crime was committed, before he is put upon his trial for a capital offence. In the case of a free white person, the accusation is made by a Grand Jury of the County in which the offence was committed. [5.] We are not aware of any rule or practice, on the trials of criminal causes, which would authorize the prosecution to introduce evidence against the defendant, after the cause has been submitted to the Jury, on both sides. Such a proceeding, it is believ ed, is unprecedented in the trial of criminal causes in this State, and from the case of Brown vs. Giles, (11 Eng. Com, Law Rep. 337,) it would seem to be contrary to the practice in England. Such a practice would operate as a surprise on the defendant, whose witnesses would be dismissed when the testimony closed, and he would, in all probability, regulate his testimony by that of the prosecution, to say nothing of the danger of perjury, when a material fact was to be supplied, to make out the offence charged in the indictment. It is true, there would be no danger of perjury in this case, because the evidence was in writing; but if one species of evidence may be admitted after the prosecution have closed their testimony, any other may, with equal propriety, be admitted. In this case the defendant introduced no testimony. We are, therefore, of the opinion, that the certiorari ought to have been sanctioned on the first and fourth grounds taken therein, and it is so adjudged by this Court. Let the judgment of the Court below be reversed. VOL. VIII 23 Montgomery vs. Evans. No. 30. JAMES MontgomERY, administrator, de bonis non, of REUBEN B. DAVIES, deceased, plaintiff in error, vs. JoHN EVANS, defendant in error. [1.] A, as the agent of B, deposits a sum of money with C, with request that he will keep it until B returns home, (he being absent from the State,) and then pay it to him—which C agrees to do: Held, that C is a depository, and not liable to be sued by B for the money, until after a request. [2] Where a request is a condition precedent to liability, it must be specially averred in the declaration, with time and place, and by whom and on whom made. It must be so set forth, as that the Court may judge whether it is made according to the contract. [3.] In an action by B against C, for the money deposited with C by A, as the agent of B: Held, that A is not a competent witness for the plaintiff, to prove the liability of C. [4.] It is error in the Court, to instruct the Jury in relation to a matter of fact, about which there is no evidence, Assumpsit, &c. in Crawford Superior Court. Tried before Judge FLOYD, August Term, 1849. This was an action brought by John Evans against Montgomery, as the administrator of Reuben B. Davies, to recover one hundred and fifty-seven dollars, deposited by Elijah Evans, as alleged, with the intestate during his life, for the use of John Evans. The plaintiff first proved by John Evans, Sr. that he was present when the money was deposited for John Evans, who was then in Mississippi. Plaintiff then offered the testimony of Elijah Evans, taken by commission, who swore that he, as the agent of John Evans, deposited the money with Davies, for Evans. Defendant's counsel objected to this evidence, on the ground, that as agent, he was liable for the money to John Evans, and “was interested in shifting the burden from himself, and placing it on defendant.”. The Court overruled the objection-and this is the first decision complained of. The defendant then objected to the following interrogatory, as being leading and irrelevant : “Look at the annexed account, and say if it was made out by Montgomery vs. Evans. you-and if yea, how came you to make out your account, and prove it in your own name? Were you, or not, acting as the agent of John Evans-and were you not told that the account should be made out in that way—and was it not so done through mistake?" The account referred to was made out for the same money, as due to Elijah Evans. In answer to this interrogatory, the witness stated he made out the account thus by the advice of defendant. The Court overruled this objection-and this decision is alleged as error. Other evidence was introduced, to prove the same facts, as already stated. Defendant then moved to dismiss the case, on the ground, that no demand was proven to have been made on the intestate or his representative. Elijab Evans, the witness, had demanded the money as his own at least, he had sworn to it in an account, as due to himself, and ordered suit if not paid; and said suit was brought, and then dismissed by plaintiff. The Court overruled this motion, and defendant excepted. The Court charged the Jury, that it was necessary for plaintiff to prove a demand, in order to recover; and they might look into the testimony to ascertain if this fact was proven-to which charge, defendant excepted, on the ground, that no such evidence had been before the Jury. The defendant moved for a new trial, on the several grounds of error alleged; and farther, because the verdict was contrary to the evidence. The Court overruled this motion, and defendant excepted. And on these several exceptions, error is assigned. HALL and GREENE, for plaintiff in error, cited— Nisbet vs. Lawson, 1 Kelly, 282, 283. Sage vs. Sherman, 25 Wend. 426. Story on Agency, §§218, 247. 1 Greenl. §51. 1 Chitty, 244, '5, 285. Story on Bailment, §§107, 103, 105. Paschal vs. Davis, 3 Kelly, 256. Graham on New Trials, 278, 262, 362, 326, 237, 271. HUNTER, for defendant in error, cited Montgomery vs. Evans. Chitty on Contracts, 231, (and note 1,) 733. 6 Ga. Rep. 365, 213, 276, 324. 1 Kelly, 392, 580. 4 McCord, 412. New Trials, 284. By the Court.-NISBET, J. delivering the opinion. Graham on [1.] The counsel for the defendant moved on the trial, that the plaintiff be non-suited, because there is no allegation in the declaration, that a demand had been made on the defendant's intestate or his representatives, after his death, of the money sued for. Whether such averment was necessary, depends upon the question, whether the defendant is liable without such demand. If he is not-if the demand is a condition precedent to his liabilityI apprehend it will be conceded that the averment was indispensable. To determine this question, we must look to the character of the deposit out of which the action grew. By two of the witnesses, it is proven that Elijah Evans, as the agent of John Evans, delivered to R. B. Davies, in his lifetime, from $150 to $160, for John Evans. The testimony most favorable to the plaintiff, is that of the witness, Montgomery; and I take his evidence as determining the character of the transaction. He swears that Elijah Evans deposited with Davies between $150 and $160 of money belonging to John Evans, and requested him to pay the same to John Evans, upon his, John Evans', return home, which Davies agreed to do." At the time of this deposit, John Evans was absent, on a visit to the State of Mississippi. This action is brought by John Evans, against the administrator of R. B. Davies, who died shortly after the deposit, for the money. The delivery of this money by John Evans, through Elijah Evans, his agent, to Davies, was, to our apprehension, a bailment, under the class deposit. A deposit is defined to be "a bailment of goods, to be kept by the bailee without reward, and delivered according to the object or purpose of the original trust." Story on Bailment, §§ 41, 42. The delivery, in this case, if not a deposit, must belong to the class mandate; at least, if not a deposit, I do not see that it assimilates at all to any bailment, but that of mandate. If not a mandate, it must, then, be a deposit; but it is not a mandate-therefore, it is a deposit. Without the aid, however, of a syllogism, I think it is demonstrable that this is a deposit. A mandate "is a bailment of goods, without reward, to be carried Montgomery vs. Evans. from place to place, or to have some act performed about them." Story on Bailment, §5. The difference between a deposit and a mandate, according to Sir William Jones, is, that the latter lies in feasance, and the former in custody. Jones on Bailm. 53. That is to say, the depository is charged with keeping the goods only, and the mandatory with doing something with or about them. Mr. Story, holding that custody involves feasance, and feasance custody, excepts to Sir Wm. Jones' distinction, and says, "the true distinction between them is, that in case of a deposit, the principal object of the parties is the custody of the thing, and the service and labor are merely accessorial. In the case of a mandate, the service and labor are the principal objects of the parties, and the thing is merely accessorial." Story on Bailm. §140. The American jurist, I think, has the advantage of the British scholar, in fulness. The object of a mandate is, that the thing bailed may be transported from point to point, or that something be done about it. The object of a deposit is, that the thing be kept, simply. Without elaborating these distinctions, it is already seen, that this is a deposit. This money, delivered to Davies, was not to be carried anywhere, nor was anything to be done concerning it. By the evidence, the money was deposited with Davies, with a request to pay it to John Evans, upon his return home; which he agreed to do. It was a contract of deposit. There was a delivery, an undertaking to keep it until Evans returned home, and then to pay it to him. It would be a very unreasonable construction of the undertaking to pay it to Evans when he returned home, that it involves the obligation to carry it to him—to make a tender of it-in order to protect Davies from liability to suit. Davies had no interest in the matter; the custody of the money was assumed for Evans' benefit; and at the moment Evans did arrive, the money was then in Davies' hands, as his depository. Before he returned, no one had a right to demand it. When he returned, Davies held to him the relation of depository. Suppose there had been nothing said about paying the money to Evans when he returned, but the deposit had been simply for Evans, when he returns-the obligations of Davies would then have been just what they now are. He would have been bound to pay it to him upon demand-that is just his obligation now. Mr. Davies, then, was a depository; that is his legal character; a deposit is the legal character of the transaction. |