Doe ex dem. Vaughn v. Biggers , 6 Ga. 188 ( 1849 )

By the Court.

Nisbet, J.

delivering the opinion.

[1.] The first question I propose to consider is, whether the Court erred in admitting the secondary evidence of the execution under which the land in question was brought to sale. It was a Justice’s Court execution in favor of Daniel, against the plaintiff’s intestate, Jenhins. The levy on the land was made by a Constable, and the execution was returned to Wynn, the Sheriff of the County where it lay, who sold it, and made a deed to the purchaser. The defendant below claimed title under this levy and sale. Parol evidence was admitted to prove the contents generally, (not, as we shall see, to prove the fact that there was on it the Constable’s entry of “no personal property to be found,”) of this execution. The plaintiff in error holds that, under the circumstances of this case, the secondary evidence ought not to have been admitted, because there was not sufficient diligence used in proving its existence, and its destruction or loss. This execu tion is not required by law to be recorded. Justices of the Peace are required to keep dockets, and are presumed to keep a record of judgments, and of the issuing of executions. An execution which, issuing from a Justice’s Court, is levied upon lands or negroes, passes by law into the hands of the Sheriff to be executed. He is required to keep a docket, with entries of his actings and doings upon all executions which come to his hands, and when they have fulfilled their functions, to return them to the Court from whence they issued. There they remain as papers on file. The place of deposit of an execution haying performed its office, which issues from the Superior Court, is therefore the Clerk’s office of that Court. So, if it issues from the Inferior Court, the Clerk’s office of that Courtis the place ofits deposit and legal custody. Magistrate’s Court executions ought to be returned to the Court from which they issue. This paper, therefore, is an office paper, which the law presumes to be on file.

Now, in order to let in secondary evidence of this paper, its existence must be proved, and its loss or destruction.

[2.] The destruction of the paper, its existence haying been proven, (and slight evidence of its existence is sufficient, 1 Greenleaf’s Evid. 623,) being established, secondary evidence will be admitted. This case does not turn Upon the destruction of the paper. If lost, however, secondary evidence will also be admitted.What diligence) in proving its loss is required, is not settled by any general rule, applicable to every case. This is impossible, for the requisite degree of diligence in the search must depend upon-the circumstances of each case. The question of diligence, therefore, is left to the Court.

[3.] It is the province of the Court to determine whether the loss of the instrument is sufficiently proved to admit secondary evidence' of its contents. 1 Greenleaf’s Evid. 623, 624. Page vs. Page, 15 Pick. 368. There are, however, general principles settled which apply to most cases of this kind, by which the Courts are bound. The law does not require unquestionable proof of loss. The object of the proof is to establish a reasonable presumption of the loss of the instrument.

[4.] In general, the party is expected to show that he has, in good faith, exhausted, in a reasonable degree, all the sources of information and means of discovery, which the nature of the case suggests, and which were accessible to him. Good faith and reasonable diligence are the requisites, and the diligence must have reference to the nature of the case. 4 M. & S. 48. 6 T. R. 246. 1 Starkie’s Evid. 336 to 340. 2 South. 501. 8 Scott, 85. 3 Watts & Serg. 291. 1 Greenleaf’s Evid. 624. See, also, the numerous authorities cited by Cowen & Hill, note to Phil. Evid. 867, and 1 Greenleaf’s Evid. §84, note 2. Now, in the case before me, did the party establish, by proof, a reasonable presump-tion of the loss of this execution? Did he, in good faith, in a reasonable degree, exhaust -all the sources of his information and his means of discovery, having reference to the nature of the case? According to the nature of this case, it was incumbent upon him to apply to the Magistrate’s office of the District whence the execution issued, to ascertain if the original, or any record of it, was there. That he did. This execution might have been returned by the Sheriff who sold the land, to the office of the Clerk of the Superior or Inferior Court of the County where the land lay. It was reasonable to search there — and there he made search. It was reasonable that the Sheriff might have retained it, or cotád give information about it, and therefore he ought, in the exercise of reasonable diligence, to have applied to him; which he did. He also caused inquiry to be made of several of the owners of the land, who bought it prior to himself. The Sheriff, Wynn, testified that he was under the impression that, after the sale, he handed the execution to Daniel, the plaintiff, and the main point made by the plaintiff’s counsel, rested upon the want of diligence in procuring the evidence of that person.

[5.] In relation to Daniel, the evidence is, that some twelve or fourteen years ago, he removed to Cherokee County, in this State, 'where he lived until about two years before the trial of the cause, and had removed to New Orleans. Mr. Dougherty, the witness, testified that he had told the defendant of this. At what time he told the defendant does not appear. Another witness testified, that while acting as agent for the defendant in procuring evidence, he had understood that Daniel had removed to Texas. It does not appear, from the evidence, that defendant knew that Daniel was in the State whilst he remained. Two years before the trial he had left the State. It is farther to be noted, that it is not proven, positively, that he ever had the execution; the witness Wynn only testifying that it was his impression that he handed it to him. To another witness, Wynn stated, it seems, in a letter to him, that his impression was that he had returned it to the Clerk’s office of the Inferior Court of Coweta County. Now, this is not to be taken as a case where the paper is clearly traced to a person. That he ever had it, must have been with the defendant a matter of doubt. If it were clearly proven to be in his hands, and he resided out of the State, the authorities are in conflict, whether secondary evidence would not be admissible, upon the ground of his being without the jurisdiction, and not amenable to any process of our Courts, either to produce the paper, or to testify. He might be examined by commission, but no Court in this State could compel him to testify. Nor are the Courts of Georgia judicially cognisant of the fact, that by the laws of the State where he resides, he could be compelled’to testify in obedience to a commission from our Courts. This goes upon the same principle that has established the rule, that where a subscribing witness to a deed is without the jurisdiction, secondary evidence is admissible to prove its execution. See, in favor of the secondary evidence in such a case, Prince vs. Blackman, 2 East, 250. Hodnet vs. Toman, 1 Starkie R. 90. Boone vs. Dykes, legatees, 3 Monroe, 532. Eaton vs. Campbell, 7 Pick. 10. 6 Peters, 352. Contra, Townsend vs. Atwater, 5 Day, 298, 306. Lewis vs. Beatty, 8 Mart. Lou. Rep. N. S. 287, ’8, ’9. 9 Cow. 115. It is not necessary for me to express an opinion upon this point. I therefore express none. "Whether Daniel, in fact, had this ji. fa. or not, is not clearly proven. The presumption, too, that he has it still, if he ever had it, may be rebutted. 15 Pick. 368. 1 Hud. & Brooke R. 748. The valueless character of this extinct paper to Daniel, and the great length of time which had transpired since the sale, might, in this case, rebut the presumption, tosome extent, that it is still in his possession. At least, and so say the authorities, such circumstances will lessen the degree of diligence required in order to let in secondary evidence. Admitting, however, that diligence was required in this case, to procure the testimony of Daniel, it is not a case (inferrable from all the facts detailed) of that nature which required the highest degree of diligence. It appears that, after learning that he had removed either to New Orleans or Texas, letters were addressed by the defendant, through his counsel, to him, at both those places, and that no knowledge of his actual residence was obtained. All the effort made to procure the original paper in this case, raises a reasonable presumption of its loss. The party seems, in good faith, to have exhausted, in a reasonable degree, his sources of information and means of discovery. We think the secondary evidence, therefore, of the contents of this execution was properly admitted.

See farther, upon this point, 10 John. R. 374. Harp. Eq. R. 243. 2 Verm. R. 456. 2 Blackf. 228. 3 McCord, 322. 1 Dow & Clark, 190. 2 Bay R. 487. 1 Wright R. 305. 5 Conn. 108. 3 Brod. & Bing. 295. 6 Verm. 399. 9 Wheat. 581. 6 Gill & John. 386. 5 Pick. 436. 1 Wright, 440 to 450. 6 C. & P. 181. 3 Mass. 82. Cow. & Hill’s Notes, 844.

[6.] The contents generally of the execution being proven, the Court admitted a copy of the Sheriff’s deed to the purchaser of the land sold under it. The plaintiff objected to the deed going in evidence, because it was not proven, that the execution had upon it the Constable’s entry of “no personal property to be found,” at the time of the levy on the land. By the Act of 1811, it is declared that “no Constable shall be authorised to levy on any negro, or negroes, or real estate, unless there is no other personal estate to be found sufficient to pay the debt,” &c. Prince, 506. In Hopkins vs. Burch, this Court determined, that to make the sale of lands or negroes, under Magistrate’s C ourt executions valid, it must appear, by the Constable’s entry on the execution, that there was no other personal property, or that the defendant being in possession, pointed out the land and negroes. 3 Kelly, 222. Such an entry, then, was necessary to the validity of this sale, and without it the deed ought to have been repelled. Under the decision of this Court it was argued, that the defendant claiming title under a sale by virtue of a Magistrate’s execution, must show that ’the entry was on it. The question is not whether such an entry is necessary. We hold that it is, and that it constitutes a necessary part of the title. If the execution had been produced in this case, and there had been no such entry upon it, and the officer could not be had to amend his entry, or if had, could not so amend, the deed ought to have been, under our decision, repelled. The question now is, whether the existence of the execution having been proven, as well as its loss, and its contents having been proven by parol — that is to say, the execution and the levy on the land by'the Constable, being before the Court, by parol, will not the Court presume from these facts, that the Constable made the entry of no personal property to he found, before levying on the land 1 It is a question of evidence from presumption. The witness who proves the execution and the levy, says nothing about this entry whatever. Were it proven nol^to have been on it, then the case would be as if the execution itself had been produced without the entry on it. The question is not, again, whether there was or was not personal property sufficient to pay the debt.

[7.] But it is whether the Constable made upon the lost execution the necessary entry. We think that the deed was well admitted, because we think that the presumption of the law is, that the Constable^ a sworn officer, did his duty, and that there was such an entry on the original execution.

The presumption is that the entry was made, until the contrary is made to appear. The burden of proof, by the rule of presumption, is cast upon the other side. The general rule is, that when an officer is required to do an act, the omission of which would make him guilty of a culpable neglect of duty, it ought to be intended that he has duly performed it, unless the contrary be shown. Phil. Evid. 151. 3 East, 182. 10 East, 216. Peake’s Evid. 5. Buller, N.P. 298. 3 Wils. 362. 2 Black. R. 852. 11 John. R. 517. 19 John. R. 347.

The act required of the Constable in this case is one, the omission of which would make him guilty of the most serious neglect of duty — an act upon which the title of lands or negroes might, does in this case, depend. So serious is the required act, that a levy upon lands or negroes without it, would subject him to liability as a trespasser. It is not our business to inquire into the probabilities, as a mere question of fact, whether an ignorant Constable has done his duty. We look upon him as an officer of the law, and are to be governed by the same general rules, whether he be a wise man or a fool. In Hartwell vs. Root, a Sheriff was presumed to have made a levy. Woodioorth, J. said, “ The question in this case is, whether it is not to be presumed, that the defendant made a levy on the property of Conkling. The officer acted upon his oath of office. His duty required him to make a levy, and it does not appear that Conkling had any other property besides the horses to satisfy the execution. In such a case, in the absence of positive proof, and against a public officer, the circumstances offered a fair and reasonable presumption that a levy had been legally made.” 19 John. R. 347. The rule of presumption in that case was applied in favor of the officer. In all cases it would seem to me, that it ought to be applied with greater liberality in favor of purchasers or others, who are affected by his acts. The case of Jackson ex dem. Sternberg et al. vs. Shaffer, is strongly to the point. In that case it was decided by the Supreme Court of New York, that where land is sold under a fi.fa. and a deed executed by the Sheriff, the Court would presume that the execution had been levied. This, in favor of the purchaser. “ Another point,” said Van Ness, J. “ was made in behalf of the defendant, which it is necessary briefly to notice, namely: that the sale under the judgment in favor of Ehle, which is the foundation of the plaintiff’s title, is void, because it is not shown that there had been a previous levy by the Sheriff. It no where appears that there had not been a levy. And, if it were necessary, the Court would, under the circumstances of this case, presume it to have been made.” 11 John. R. 517.

The two cases last referred to presume a levy — an act necessary to the validity of a sale. We do not, in this case, presume a levy, but a preliminary official act, which is also necessary to the validity of the sale, but not more necessary than a levy. I apprehend that the rule will be found general, that officers acting under oath, or in whom the Government reposes a trust, are presumed to have done their duty until the contrary appears. In favor of this general rule, see the following cases: Hickman vs. Boffman, Hardin’s R. 348. Beeler’s Heirs vs. Bullitt’s Heirs, 3 Marsh. K. R. 280. Tupper vs. Taylor, 6 Serg. & Rawle, 173. 2 Gall. R. 15. Marsh vs. Lawrence, 4 Cowen R. 461. 6 Ib 276. 3 Monroe, 211. Ib. 271. 3 J. J. Marsh. 226. 3 Gill. & John. 350. 3 N. Hamp. R. 310. 5 Litt. R. 19.

The best evidence in this case clearly would be, under the decision in Hopkins vs. Burch, the execution with the entry thereon, that being lost, secondary evidence as to the entry is admissible. Now the highest degree of secondary evidence is not required.

[8.] The rule upon that point is this — when there is no ground for legal presumption that better secondary evidence exists, any proof is received which is not inadmissible by other rules of law, unless the objecting party can show that better evidence was previously known to the other, and might have been produced; thus subjecting him, by positive proof, to the same imputation of fraud, which the law itself presumes, when primary evidence is withheld. Whether the highest secondary evidence ought not to be produced, it is true, has been a mooted question. But the weight of authority is in favor of the rule as I have stated it. Coyle vs. Coyle, 6 C. & P. 81. Rex vs. Hunt et al. 3 B. & Ald. 566. 6 C. & P. 206. 3 Scott, N. R. 577. Doe d. Gillbert vs. Ross, 8 Dowl. 389. 7 M. & W. 102, S. C. Gilbert’s Evid. by Lofft. p. 5. 8 C. & P. 502. 2 M. & Rob. 138, 10 Watts, 63. 9 Wheat. 582 to 587: 2 Halst. 46 to 53. 2 Mason, 464. 1 Greenl. Evid. §84, note 2. As there was no better evidence of the fact to be proved, shown to exist, and within the knowledge of the defendant, it was proper to admit evidence by presumption. The rule of presumption would apply, however, irrespective of the peculiar circumstances of this case — they render its application free from doubt.

[9.] The Court instructed the Jury that, in determining the question whether the entry was on the fi. fa. they should take into consideration the lapse of time since the levy, the testimony of Wynn, the admissions of Jenkins, the plaintiff’s intestate, and all the circumstances of the case ; and this charge is excepted to. If it was right to admit secondary evidence of the fi. fa. at all, then it was proper for the Jury to consider of it. They were the judges of that evidence. Jenkins' admission went to prove the existence of the execution. Wynn's testimony to prove its contents generally, the levy, and sale, and the deed. Lapse of time is a circumstance from which its loss may be inferred. The presumption that an officer has performed his duty, is a legal presumption, drawnby the Court; yet, as in this case, it could not be drawn but upon the establishment of the loss of the execution, all the circumstances going to show the loss were properly submitted to the Jury. Presumption of loss of a paper may arise from lapse of time, which will be taken into account, in determining the question of diligence in the search. Per Story, J. in Patterson vs. Wynn, 5 Peters R. 242, ’3. 1 Greenl. Evid. §20.

[10.] A motion was made to the Court to exclude the following answer of a witness, [Foster,) to wit: “In relation to what will benefit the defendant, I will say, that from my knowledge of said Jenkins’ business and affairs, I think said Jenkins made a contract with a certain William Daniel, when Jenkins and myself were in BuTlsborough, Coweta County, or at some other time; and farther, that said Jenkins admitted of executions to issue against him in favor of said William Daniel, and as I have been informed, the land which he drew in the land lottery of eighteen hundred and twenty-seven, in the Coweta, Muscogee and Carroll lottery, was sold by the Sheriff under said executions, and that said Jenkins received full remuneration in the overplus of said executions in money, and also in a note of the sum of ninety-eight dollars on Willi am Daniel.” The Court, upon this motion, excluded all of this answer of the witness, except the following: “ that said Jenkins admitted of executions to issue against him in Coweta County, in favor of said William Daniel.” The admission of this part of the answer is complained of as being erroneous. The argument in favor of its inadmissibility is, that it stands connected in the answer with the first members, to wit: “From my knowledge of said Jenkins’ business and affairs, I think said Jenkins made,” fyc. and being so connected, the admitted part is to be taken as a statement dependent upon witness’ knowledge of the business and affairs of Jenkins, and not sworn to positively, but presented as the thought or opinion of the witness. This is the whole of the argument in favor of the exception. If the connection and dependence asserted do exist, it is clear that the testimony is illegal, and not otherwise. The answer of this witness is written without regard to punctuation — the words run continuously. Ye are, therefore, compelled to construe it, without aid from that quarter. In such a case, the best rule would seem to be to read it so as to make sense of each and every part — to connect such parts as will be, when joined together, susceptible of an intelligible meaning, and if a proposition or statement becomes absurd by connection, to let it stand as an independent statement. Apply this rule to the admitted evidence, and the preliminary statement, “from my knowledge of said Jenkins’ business and affairs, I think said Jenkins,” &c. and how will the union read ? thus : “From my knowledge of said Jenkins’ business and affairs, I think said Jenkins admitted of executions to issue against him in Coweta County in favor of said William Daniel.” The witness testifies as to admissions, that is, to verbal admissions made by Jenkins. Now, as united, he is made to state his opinion or thought as to verbal admissions made by a man, from his knowledge of his business and affairs. Now is it not very unreasonable to suppose that a witness, any witness, intended to testify as to verbal admissions of another, from his knowledge of his business and affairs? No person with the least possible amount of sense, could be presumed to intend to testify so absurdly. The preliminary part of the answer has its legitimate reference to other parts of the testimony; parts to which it may intelligibly apply — parts, too, which precede that portion which relates to admissions. To them the Court applied the preliminary statement, and considering that the witness intended to confine it to them, held the testimony as to the admissions, as an independent statement. "We- think this the only reasonable construction to be given to this answer. It is one which gives an intelligible meaning to the whole of it, and which involves the witness in no absurdity. Viewed in this light, the testimony which was admitted, proves admissions of the plaintiff’s intestate against his title, and was legitimate evidence.

One or two other points of error are made in the assignment,, but which seemed to be abandoned in the argument, and upon which, therefore, I shall express no opinion, only remarking that, in the judgment of the Court, they were not such as would authorize us, if sustained, to send the case back.

Let the judgment below be affirmed.