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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 spe

cially 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 al. ready 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 verdiet 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 m Agency, $8218, 247. 1 Greenl. $51. 1 Chitty, 244, '5, 285. Story on Bailment, $5107, 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. Graham on New Trials, 284.

By the Court.-Nisbet, J. delivering the opinion.

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[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 tion, 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 de livery 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 sis 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 aceessorial. In the case of a mandate, the service and labor are the principal objects of the par. ties, 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 ånything 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 un

а reasonable 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 demánd 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. Montgomery vs. Evans. What, then, under the law, are his obligations ? They are two. First-it was his duty to keep the money with reasonable care. Nothing need be said about this obligation, for it is not sought to charge bim for want of care. Second—it was his duty, on request, to deliver it, according to the trust. His obligation, by the terms of the trust, was to pay it, that is, deliver it, to Evans, upon his return. He was bound to deliver it on request; and upon refusal so to do, and not until then, has he violated his contract; and not until then was he liable to be sued for it. Such is the law which governs this species of bailment. If the request was preliminary—a condition precedent to liability—it was indispensable to aver it, and also indispensable to prove it. The exception to the declaration was well taken, and the plaintiff ought to have been non-suited. : As to the necessity of request, see Story on Bailm. $$61, 107. Brown vs. Cook, 9 Johns. R. 361. Hofmer rs. Clarke, 2 Greenleaf's R. 308. 1 Dane's Abr. ch. 17, art. 1, 2. 2 Black. Com. 452. Pothier's Traite, de Depot, n. 22. As to the necessity of averring and proving a request, see Com. Dig. Pleader, c. 69. 1 Saunders R. 33, n. 2. 5 B. & Ald. 712. 1 D.S R. 361, S. C. 1 Taunt. 572.

[2. The presiding Judge instructed the Jury, that it was necessary to prove the request in this case. He must, therefore, have believed that it was sufficiently averred. In looking into the declaration, I find no averment but the usual formal averment<" although often requested.” Where request is a condition, as in this case, precedent to liability, that is not sufficient, The request must be so set forth, as that the Court may judge whether it is sufficient, according to the contract. Hardw. 38. Skin. 39. Saund. on Plead. and Ev. 1 vol. 131. 1 Chitty Plead. 244, '5. 1 Greenl. Ev. $51. It must be stated, with time and place, and by and upon whom made. 3 Bulst. 298. Wallis vs. Scott, 2 Stra. 88. Back vs. Owen, 5 T. R. 409. Com. Dig. D. Plead, c. 69.

(3.) Elijah Evans was called to prove the deposit of the money with Davies, and the terms and circumstances of the deposit. His testimony was excepted to, upon the ground of interest, and the exception overruled ; and that is assigned for error. witness was called to establish the liability of the defendant-to prove the payment, by him, of a sum of money belonging to the

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