Montgomery vs. Evaus.

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 him 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 vs. 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. & 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. The witness was called to establish the liability of the defendant-to prove the payment, by him, of a sum of money belonging to the

Montgomery vs. Evans.

plaintiff, to the defendant's intestate. In the absence of all such proof, the agent (the witness) would be himself liable to the plaintiff, bis principal, for the money of his principal. He is called to fix a liability upon another, which, if established, would discharge himself. He is, therefore, interested. If there is a recovery for the plaintiff, I see no reason why that recovery could not be pleaded in bar of an action against him, for the same money. This point is fully settled in Nisbet vs. Lawson, 1 Kelly R.

282.

[4.] The presiding Judge, as before stated, instructed the Jury that a request was necessary to be proven, and that they might look into the testimony to ascertain if it was proven, and if they were satisfied that a demand was proven to have been made by Elijah Evans upon Wm. L. Johnson, the former administrator upon Davies' estate, then they would find for the plaintiff—and if not, they would find for the defendant.

Exception is taken to this charge, as being made in relation to a demand, about which there was no testimony. I have looked carefully into the evidence, and find no testimony whatever in relation to a demand by the plaintiff. This being true, it was error to instruct the Jury to look into the evidence, and if they found the demand proven, to find for the plaintiff, and if not, for the defendant. It has been, over and over again, decided by this Court, that it is error to instruct the Jury in reference to a matter of fact, about which there is no evidence. The language of the Judge is, that if they believed that a demand was made by Elijah Evans, they should find for the plaintiff. This was wrong, in any view of it. If he intended to be understood to instruct them, that if a demand was made by Elijah Evans, as the agent of John Evans, they should find for the plaintiff, he ought to have so expressed himself; but he does not. From what he does say, the Jury could have believed nothing else, but that he meant, that a demand by Elijah Evans, in his own right, would be sufficient to authorize the plaintiff to recover. If he is to be understood as assuming that the agency of Elijah Evans, in making a demand, was proven, the charge is equally erroneous; because there is not a particle of evidence to prove that agency. The agency of Elijah Evans, in making the deposit, is proven; but so far from his agency in making a demand being proven, or there being any testimony to prove it, the reverse is true. The

Attaway vs. Dyer and others.

demand which was made, and the only demand about which there is any evidence, was made by Elijah Evans, in his own right. He presented to Davies' administrator the account, made out in his own name-swore to it and suit was actually brought upon it, in his name. All the evidence, in addition, as to demand, was irregularly admitted, because there was no demand averred. Upon these grounds, let the judgment of the Court below be reversed.

No. 31. JOSEPH ATTAWAY, guardian, &c. plaintiff in error, vs. NICHOLAS DYER, defendant in fi. fa. and B. H. CONYERS and J. C. PERKINS, claimants and defendants in error.

[1.] The privilege allowed to claimants, by the Act of 1821, of capriciously withdrawing claims once, must be exercised before a verdict has been rendered for damages against them, in favor of plaintiffs in execution-it cannot be done afterwards, so as to take the case out of Court, notwithstanding an appeal has been entered.

[2] The question discussed, Whether, under our Statute, where the defendant, upon a plea of set-off, recovers a balance against the plaintiff, the plaintiff has a right, on the appeal, to dismiss his action so as to defeat the judgment?

.. Claim on appeal, from Coweta. Decision by Judge HILL, at September Term, 1849.

In this case there had been a claim of the land levied on, and a damage bond given. On a Jury trial, September, 1848, they found the property subject, and, also, 50 per cent. damages for claiming for delay. Claimant appealed, and after the parties announced ready for trial, at September Term, 1849, the claimant "moved to withdraw his claim-not having withdrawn it before which was allowed by the Court-the plaintiff objecting. Plaintiff then moved a judgment that the land be sold, and that the Clerk issue execution on the verdict for damages, which had

Attaway vs. Dyer and others.

been rendered at September Term, 1848. This was refused as to the issuing a fi. fa. for the damages, but allowed the order that the levy proceed as to the land.

To which several rulings exception is taken, and the case brought up.

BURCH, for plaintiff in error, cited

Prince's Digest, 426, 448.

STOKES, for defendant in error, cited—

Yeaton vs.

Campbell vs. Howard, 5 Mass. R. 376. Pennhallow vs. Doane, 3 Dallas, 87, 119. Keen vs. Turner, 13 Mass. 266. United States, 5 Cranch, 281. The Venus, 1 Wheat. 113. Carter and wife vs. Buchanan, 2 Kelly, 337. Payne vs. Cowden, 17 Pick. 142. 20 Pick. 510.

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

[1.] The preamble to the Act of 1821, (Prince, 448,) recites, that" Whereas, various constructions have been given in the different Courts of this State, as it regards claims of property, which tend to the manifest injury of the community, and frequently produced, not only injustice to the plaintiffs in execution, but which tended evidently to oppress and harrass them by delays of justice—

Sec. 1. Be it therefore enacted, That when any Sheriff or Coroner shall levy an execution on property, claimed by any person not a party thereto, such person shall make oath to the same, and it shall be the duty of the officer to postpone the sale until the next term of the Court from whence said execution issued: Provided, said execution is levied on personal property; but should it be levied on real estate, and claimed, then the report is to be made to the next term of the Superior Court of the County in which the land lies; and the Court to which the claim is reported, shall cause the right of property to be derided on by a Jury at the first term, unless special cause be shown to continue the case for one term, and no longer: Provided, also, the person claiming said property, his agent or attorney, shall give bond to the levying officer, with good and sufficient security, in a sum equal to double the amount of the VOL. VIII. 24

Attaway vs. Dyer and others.

property levied on, at a reasonable valuation, to be judged of by the levying officer, conditioned to pay the plaintiff all damages, which the Jury, on the trial of the right of property, may assess against him, in case it should appear that said claim was made for the purposes of delay; and every Juror on the trial of such claim, shall be sworn, in addition to the oath usually administered, to give such damages, not less than ten per cent. as may seem reasonable and just to the plaintiff against the claimant, in case it shall be sufficiently shown that said claim was made for delay only; and it shall be lawful for such Jury to give verdict in manner aforesaid, by virtue whereof judgment may be entered up against such claimant and his security or securities, for the damages so assessed by the Jury, and the cost of the trial of the right of property: and provided, also, that the burden of proof shall lie upon the plaintiff in execution, in cases where the property levied on is, at the time of such levy, not in possession of the defendant in execution."

Sec. 2. "Whenever such claim of property may be made in terms of this Act, the person claiming property levied on and returned to the proper Court, by the levying officer, shall not be permitted to withdraw or discontinue his said claim, more than once, without consent and approbation of the plaintiff in execution, or some person duly authorized to represent such plaintiff'; but said Court shall proceed to the trial of said claim of property, in manner aforesaid, and it shall be the duty of the Jury to award damages accordingly: that either party who may be dissatisfied with the verdict of said Jury, may enter his, her or their appeal to a Special Jury in the Superior Court, in the County where said trial may have been had; which appeal shall be subject to the same rules and regulations which govern in appeals in ordinary cases."

The question for our consideration is, whether a claimant against whom, not only a verdict and judgment of condemnation, finding the property subject, has been rendered, but, also, damages have been assessed by the Jury for the injury done the plaintiff by the delay, can, under the provisions of the foregoing Act, so withdraw his claim, capriciously and without the consent of the opposite party, as to take the case out of Court, and thus defeat the rights of the plaintiff in the recovery?

Upon the most mature reflection, and careful examination of