Another v. The Justices Of The Inferior Court Of Murray County

• Decision Date: 30 April 1855
• Docket Number: No. 109.,109.
• Parties: Reuben T. Dobbs and another, plaintiffs in error. vs. The Justices of the Inferior Court of Murray County, defendants.
• Court: Georgia Supreme Court

17 Ga. 624

Reuben T. Dobbs and another, plaintiffs in error. vs. The Justices of the Inferior Court of Murray County, defendants.

No. 109.

Supreme Court of the State of Georgia

APRIL TERM, 1855.

[COPYRIGHT MATERIAL OMITTED]

Debt, in Murray Superior Court. Tried before Judge Trippe, April Term, 1855.

This was an action brought by the Justices of the Inferior Court, for the use of James Forsyth against William Weems, principal, and Reuben T. Dobbs and John Devers, securities, on a Constable's bond, to recover damages for not returning an attachment, levied by Weems, as Constable, at suit of Forsyth, on a wagon and horses, as the property of one Enos H. White.

A return of "mom est inventus" was made as to Weems.

On the trial, the plaintiff produced an attachment against White, with an entry of levy signed by Weems.

It was objected to, on the ground that there was no proof of its execution; and also, that the attachment bond was not attested. Both objections were overruled, and defendants excepted.

Plaintiffs then offered in evidence, as the foundation of the attachment, a note of Enos H. & A. R. White, for $512, credited by some thirty dollars, and amounting, with the interest, to more than $1,000. Objected to, not sustaining an attachment against Enos H. White alone. The objection was overruled, and defendants excepted.

Plaintiffs then offered the bond in the sum of One Thousand Dollars, signed by defendants and properly attested.

To which being admitted as evidence, Counsel for defendants objected, on the ground that the law requires such bonds to be recorded, and a copy from the record properly certified, is the best evidence in such case, and should have been procured in this case; which objection the Court overruled, and defendnats' Counsel excepted. Plantiff then introduced William P. Hackney, who swore that he heard a conversation between Weems, Forsyth and Augustus N. Hargroves, Esq., Attorneys for said Forsyth in said attachment, relative to the levying of an atattachment at the time it was levied, in favor of Forsyth against E. H. White, as he understood the conversation; he thought said conversation took place in the spring of 1848, in Dalton.

Forsyth inquired of Weems where the property levied on by his attachment was? Weems pointed to the wagon and three horses and said the property was there. Forsyth inquired for the other horses. Weems replied, he had permitted said White to take them down to the shop to have them shod. Forsyth told Weems, White was a slippery chap and he had better watch him close. Weems said all would be right. Witness thinks the horses and wagon were worth about four or five hundred dollars. I would say the whole property levied on worth five hundred dollars.

Defendants' Counsel objected to the giving in of Weems' sayings to charge the defendants. The Court overruled the objections, and defendants' Counsel excepted.

Plaintiff then proved by John Forsyth, that at the time said attachment issued, both E. H. and A. R. White lived out of the State of Georgia. Plaintiff here closed his testimony.

Defendants then proposed, by way of mitigation of the damages, to prove that the legal title of the property levied on was not in the defendant in said attachment, but was in another; and that, therefore, the plaintiff had not been injured. Plaintiff's Counsel objected to this testimony, which objection was sustained by the Court, and the testimony ruled out, and defendants' Counsel excepted.

The cause being closed, the Counsel for defendants asked the Court to charge the Jury, that the bond being in the sum of One Thousand Dollars was illegal and void, unless the plaintiff had proved that it was given in a city or town, and that being an exception to the general rule, the burden of the proof was on the plaintiff, to show it was given in a city or town; and that if the Jury should find that plaintiff had not proved this fact, they must find for defendants; the Court refused so to charge, but charged the Jury, that the defendants having executed said bond, it devolved on them to show the fact, if it existed, that the bond was not taken in a city or town district, and that on their failing to do so, said bond was obligatory on them; and defendants' Counsel excepted.

Defendants' Counsel also requested the Court to charge the Jury, that as the issue in this case is, whether Weems returned the attachment or not, and as the law presumes every officer does his duty, it was necessary for plaintiff to show that Weems had failed to return said attachment according to its requirements; and that if they should find no testimony had been given in to show such failure, that they must find in favor of defendants. The Court refused so to charge; but on the contrary, charged the Jury, that as plaintiffs had sued defendants, for said Weems having failed to return said attachment and having shown that Weems, the Constable, levied on the property, it was necessary for the defendants to show that said Weems had done his duty in the premises; to which charge and refusal to charge, defendants\' Counsel excepted.

The Court farther charged the Jury as follows: that if they should find in favor of the plaintiff, the measure of damages would be the amount of his debt against White; but they could not go beyond the amount of the bond, one thousand dollars; and defendants' Counsel excepted.

The Jury rendered a verdict in favor of the plaintiff for the amount of the bond, one thousand dollars, with costs of suit. And Counsel for defendants tender their bill of exceptions, and say—

1st. The Court erred in admitting said attachment bond and levy.

2d. That the Court erred in admitting said sealed promissory note, made by E. H. & A. R. White.

3d. The Court erred in admitting in evidence the original bond of Weems and defendants.

4th. The Court erred in admitting the sayings of Weems, to charge defendants.

5th. The Court erred in repelling defendants' testimony, offering to prove that the title to the property levied on was not in defendant, White, and said property was subject to said attachment.

6th. The Court erred in charging the Jury, as it did, that the burden of proof was on defendants, to show that the Con-stable had done his duty, and that the bond was taken for too large an amount.

7th. The Court erred in refusing to charge as requested by defendants.

8th. The Court erred in charging the Jury as to the measure of damages.

Wright; Walker, for plaintiff in error.

Akin, for defendants in error.

By the Court.—Lumpkin, J., delivering the opinion.

The first error assigned is, that the Court admitted the original attachment to go in evidence to the Jury, without requiring proof of its execution.

The official attestation of the papers, is prima facie proof of their genuineness, and casts the burthen upon the party denying it.

The next complaint is, that the attachment bond was not attested by the officiating Magistrate. The law does not require that it should be. Bond, says the Statute, must be taken; and the Justice who issued the attachment, recites, in the face of it, that bond and security were given in terms of the law, in such cases made and provided. Besides, the bond is attached to the other papers, and appears with them in the record of the proceeding.

It is objected, that the affidavit charges Enos H. White as being indebted to deponent, when the note produced on the trial was the partnership note of E. H. & A. R. White.

We see no necessary repugnance between the oath and the proof. It is true, that where a declaration charges a joint indebtedness to maintain the action, it must be proved as laid. And so, e converso, if the declaration charges individual indebtedness against the defendant, the evidence should correspond. (2T.R. 478. 1 Chitty's Pl. 31. 1 East. 52.)

Where one of the joint debtors is dead, however, or a certif-icated bankrupt, the declaration need not notice such a party, though, perhaps, it is more formal to do so. (1 Chitty\'s Pl. 28, 42. 1 Johns. Cos. 405. 1 Barn & Ald. 29. 4 Ibid, 452.)

Here it appears, from the testimony, that both of the Whites resided out of the State. One of them sent property into the State, which was attached. Why not treat the other as actuually or civilly dead. In other words, not notice him at all in the proceeding?

Besides, the alleged defect here is in the oath, which is never supposed to set forth the contract upon which the indebtedness is founded. That is left for the declaration, to be subsequently filed in the case.

Either this is a sound view of the subject, or else, there is a casus omissus in our Law of Attachments. An attachment would never lie against one of two joint debtors, provided the ordinary process of law could be served on the other. No such defect, we apprehend, exists in the law. If it does, the sooner it is remedied the better.

The Statute allows certified copies of official bonds to be sued upon; and the argument is, that this permissive Act makes the copy better evidence than the original. Such is not our understanding, either of the meaning of the Act or the philosophy of evidence. Original papers are always better testimony than copies; and the latter are allowed to be used only from necessity and convenience.

We are next to consider the admissions of a principal as evidence in an action against his sureties. If made during the transaction of the business for which the surety was bound, so as to become part of the res gestÅ“, they have been held admissible; otherwise, not. (1 Greenlf. on Ev., 6th Ed., §§187, 188.)

The proof in this case is stronger even than the foregoing rule. It goes to the conduct rather than to the sayings of the Constable. He pointed to the property while in his custody, as that upon which he had just levied the attachment.

It is contended that the Court erred in refusing to al-low the defendants in the Court below the privilege of showing that the property levied on was not subject to the attachment.

Under the...