Janes ex rel. Vanover v. Horton , 32 Ga. 245 ( 1861 )

By the Court

Jenkins, J.,

delivering the opiniou.

The record in this case presents two exceptions, one of which was taken to the rejection of the depositions of William Janes, sheriff, who is the nominal plaintiff, and whose testimony was offered to prove that the principal obligor did not deliver the negroes in compliance with his bond.

This evidence was rejected, on the ground that the witness was interested in the event of the suit, and therefore incompetent. To the extent of liability for costs, the sheriff was apparently interested, and it does not appear that his usees, for whose benefit the suit was instituted, deposited the costs with the Clerk, or did any other act to relieve him from such liability; but in our view of this case, (as will hereafter appear,) his depositions were not at all material to the case.

This evidence having been rejected, the plaintiff closed his case, and upon defendant’s motion, the Court below awarded a non-suit, to which plaintiff’s counsel excepted; and this ruling of the Court we have now to review. It is not distinctly stated on what grounds this non-suit was awarded; but from other parts of the record, wo arrive at the conclusion that they were these:

1st. That the bond was not a statutory, but a voluntary bond.

2d. That plaintiff had failed to prove a demand for the slaves levied upon, which was, incumbent upon him by the common law.

3d. That he failed to prove that the defendant did not deliver the slaves in terms of the law.

It is by no means clear that this bond so nearly conforms to the statute as to make it a statutory bond. For the purposes of this case, adopting the defendant’s hypothesis, we treat it as a voluntary bond.

1. Then, by the rules of the common law, was it necessary that the plaintiff should have made, and should prove, a demand upon the obligor for the slaves, when, or after, the contingency had occurred which entitled the obligee to the delivery of them? We think not.

Mr. Parsons, in his valuable treatise on contracts, thus declares the well established rule on this subject:

“ If the thing is to be done, on the happening of an event, not to be caused by either party, he who is to have the benefit of the thing, should give notice to him who is to do it, that the event has occurred, unless from its own nature it must become known to that party when it happens ; or perhaps unless it is as likely to be known to the party who is to do the act required by the contract, as to him for whose benefit it is to be done. The rule in respect to demand rests upon the same principle as that in respect to notice. It may be requisite, either from the stipulations, or of the parties, or from the peculiar nature of the contract ■ but where not so requisite, he who has promised to do anything, must perform his promise, in the prescribed time, and the prescribed way ; or if none be prescribed, in a reasonable time, and a reasonable way, without being called upon.” 2 Parsons on Contracts, 184.

The event, upon the happening of which, the obligor in this case had contracted to deliver the slaves, was a certain judgment, thereafter to - be rendered in a cause to which the obligor was a party.

The evidence shows that that judgment was rendered, and that it made necessary the delivery of the slaves to the plaintiff. The obligor being the promovant in that litigation, the law presumes that the judgment, when rendered, was known to him. He was more likely to know it than the obligee, who had no interest in the litigation—was no party to it. Neither the stipulations of the contract nor its peculiar nature made a demand requisite. It was therefore incumbent on .the obligor to perform his contract, (i. e., to deliver the slaves,) within a reasonable time, “ without being called upon.” A reasonable time would have been on or before the day on which the sheriff, in pursuance of the judgment upon the illegality, had advertised the property for sale, and this advertisement he was bound to notice.

2. But it is said the plaintiff failed to prove that the defendant did not so deliver the slaves. We hold—

That the entry on the Ji. fa., dated 4th November, 1845, which was in evidence, is competent and sufficient proof prima facie of this fact. It was an official entry, which it was the duty of the officer to make at that time; it speaks only to that which his duty required; he had competent knowledge of the fact; there was no conceivable motive to make that entry falsely, more than any other; it was part of the res gestee of his official actings and doings in a matter confided to him by law; his general interest in making the entry, to show that he has done his dpty, does not affect the admissibility of the evidence, nor impair its effect. 1 Oreenleaf on JEvidence, sec. 115, and notes, citing numerous authorities,. Why should not the sheriff’s entry prove this fact as well as the levy, which was a part of plaintiff’s case? We think there was error in the judgment awarding a nonsuit.

Judgment reversed.