State ex rel. President of Charlotte Hall School v. Greenwell

Archer, Ch. J., delivered the opinion of the court. These are cases of cross appeals from Saint Marys County Court; the plaintiffs appealing from the judgment of the County Court on the motion in arrest of judgment. And the defendant objecting to the opinion of the County Court expressed in three bills of exception taken at the trial. We shall consider these cases as consolidated for the purposes of this opinion, and shall express our views, first, upon the various questions of evidence, and secondly, upon the questions arising under the motion in arrest of judgment, and as to the judgment itself. The claim of the plaintiff rests solely on the fact, according to the issue, whether the person referred to in the pleadings, was related to the intestate within the fifth degree of consanguinity. The defendant could alone succeed by establishing that B. Quigley, the witness, was entitled to the very fund in controversy, by showing her relationship to the intestate. Now if the evidence offered were true, and to test its admissibility we must concede it to be true, then a witness is offered by the defendant, who is in possession of the fund, to prove that the witness herself is entitled to the whole fund in controversy ; this we conceive cannot be done. She has a direct and immediate interest in establishing the fact she is called upon to prove. The defendant is the trustee for whomsoever may be entitled to the funds in his hands, and there certainly must exist a privity between the trustee and the cestui que trusts, and where a recovery is had against a trustee in a court of competent jurisdiction, where he has been guilty of no fraud, — 415 — or collusion, but has acted bona fide, in resisting claims against him, it is impossible that be could be answerable over to another, though not a party to the suit for the same sum adjudged against him. Or in other words, that the law could twice make him answerable for the same trust fund. If this doctrine be correct, and we are inclined to think it is, although B. Quigley, the witness, was not party to this suit, yet if all the funds in the administrator’s hands were swept from him, by a judgment in this case, such judgment would be an absolute bar to any suit instituted afterwards by her against the administrator, to recover her distributive share. The effect of her evidence is, then, to enable the administrator to hold the funds for her benefit; for her evidence shows, that she is entitled to it, and to prevent its recovery against him, when if it was recovered it would be lost to her. In this view of the case, she had a direct interest in the event. But if we were incorrect in this, it is clear that the judgment against the administrator would be a bar against any claim made by the witness, where no fraud or collusion existed, and where she had notice of the controversy, that she might participate it its defence. Here she had notice, and therefore was clearly, properly excluded. The court were therefore right in rejecting the evidence offered on the part of the defendant, in the first and second bill of exceptions. But we are of opinion, that so much of the evidence in the third bill of exceptions, as relates to the declarations of the intestate, that he, and B. Quigley were second cousins, was admissible testimony. It is evidence to prove a relationship within the fifth degree ; if it be reckoned by counting down from the common ancestor, to the more remote, according to the rule prescribed by the act of 1798, ch. 101, sub-ch. 11, sec. 15, and that mode must be adopted, whatever was the rule anterior to the passage of that act. The reservation in the loth section refers alone to the surplus, after making the computation of relationship as required by it, and was not intended to preserve a different mode of — 416 — computing relationship, where the schools were to have the surplus, from that prescribed, where the estate was to be entitled to it. . The admissibility of the intestate’s declarations depend upon the same principles, as do all declarations in relation to pedigree. The conversation with B. Quigley, anterior to these declarations, may lessen its weight with the jury, but it comes from an unquestionable source. • It is a very fair presumption, that there exists with every man, particular, actual, or traditionary knowledge, in reference to his own relations, and there exists prima facie, a competence in him to speak of them^/His means of knowledge may vary according to the circumstances in which he may have been placed, and it is for the jury to give credit, or not, to the declarations, as they may think under all circumstances they are entitled to. Assigning to the intestate, and her who claims to be his distributee, a reasonable age of maturity, as we are justified in doing, from the hill of exceptions, there is hardly a probability, that the facts attempted to be proven by the declarations, could be established by living testimony. Under these impressions, we think the court should have admitted the declarations, last spoken of in the third bill of exceptions by the intestate, ^evidence. The conversation between the intestate and B. Quigley, to prove relationship, was clearly inadmissible. The objections to the record, arise on a motion in arrest of judgment. That no reasons have been assigned, constitutes no valid objection against our examination of the record. The motion in arrest of judgment serving in some measure the office of a demurrer, we must consider that the whole record was brought to the view of the court, and that therefore, as regards the act of 1825, the motion in arrest of judgment must be 'governed by the same principles as a demurrer, and that in neither case, is the presentation of the particular grounds of action in the court below, a necessary preliminary to our entertaining the appeal. — 417 — Some objections have gone to the form of the judgment itself, others to the pleadings in the cause. It is no valid objection against the judgment, if costs could in such a case have been rightfully granted, that costs have been adjudged against the State. It is certainly true, that the State is not liable for costs, unless there exists some legislation to make her so; and the act of assembly of 1794, ch. 54, sec. 10, so far from creating any resposibility, throws it on the cestui que use; and renders such person liable by attachment. On a failure, however, of the plaintiff in his action, the act of assembly contemplates the entry of a judgment, and it could not be entered in any other manner than against the State, because in all the records and proceedings the State’s name, and not the name of the cestui que use, is used as the plaintiff, and it could not be, therefore, entered against the cestui que use. But notwithstanding this, the only effect of the judgment is to create a liability in the cestui que use for the amount. In the rendition of the judgment, however, no execution should have been awarded against the State. It is also erroneous in adjudging costs against the plaintiff. In a successful motion in arrest, each party pays his own costs. The defendant is not entitled to costs. Ho should have taken advantage of the error in the pleadings, by demurrer, and not having done so, he has by laying by, contributed to the costs of the proceeding. But wm conceive the court were in error in arresting the judgment. We can perceive no defect, which after verdict could have availed the defendant. The title of the plaintiff is sufficiently set out in the replication. An averment that Marcus Killion died in Saint Marys county, without leaving any relation within the fifth degree of consanguily or affinity, and that thereby the equitable plaintiff became entitled to the funds in controversy, was all that was necessary to have been done. As regards the death of Killion, in Saint Marys county, the averment in the replication is, “that he died possessed of a large personal estate in Saint Marys county.” There — 418 — is certainly an ambiguity attached to this phraseology. It may mean to describe the locality of the property, or it may be understood, as designating alone, the place of the death of the intestate. Different meanings may be attached to it, according to the punctuation which may be given to it, and standing without punctuation, the sense is equivocal. Had this objection been urged on demurrer, it might have been available; it is a rule in pleading, that if the meaning of words are equivocal, they shall be taken most strongly against the pleader. 2 H. Black. 530. But it is not available in arrest; for after verdict an ambiguous expression in a declaration, or replication is cured, and must be construed in that sense, which would sustain the verdict, 1 Ch. Pl. 216. Cowp. 825; and the court will intend, that the residence in Saint Marys county, without which the plaintiff could not recover, was proved at the trial. Courts will, and ought to be cautious, how they arrest judgments after verdict. They should intend nothing to overturn them. 3 Bur. 1725; nor ought we to be called upon to be astute, to defeat rights, when the law makes it our duty to be solicitous to maintain them. We have said that the averment, that the equitable plaintiff was entitled to the funds in controversy, was the Only averment of right which was neeessary. It could not be requisite, to set out the title of the president and trustees to the funds with particularity, by referring to the various acts of assembly which gave the right, in the pleadings ; because the laws in relation to that institution, are clearly public laws. The trustees are made subject, by the third section of their charter, (1774, ch. 14,) to the same penalties as the visitors of the county schools, and by reference to the act for the encouragment of learning, and erecting schools in the several counties, it is provided, that every visitor duly appointed shall be liable to a penalty, if he refuse or delay his acceptance of the appointment. Towson vs. Havre de Grace Bank, 6 Harr, and Johns. It is also clearly to be considered in the light of a public law, — 419 — to be judicially noticed by the courts, having been referred to specially in a public law entitled, an act for the promotion of literature, and also referred to generally in a public law, passed in 1826, ch. 265, entitled, an act to enable the trustees of county, and other schools and academies, to recover and obtain possession of the funds, and other property and effects, belonging to such schools and academies. This institution has annual donations granted to it by various acts of assembly, and it may therefore be considered as connected with the fiscal operations of the government, and so a public law; and being thus required to notice the laws, in relation to this corporation as public laws, we know by the same means that is is located in Saint Marys county, the laws themselves referring to its locality. The entry of the judgment below being erroneous, and the court having erred in arresting the judgment, we might proceed to pronounce a final judgment in this cause, but by-doing so, we should inflict injustice upon the defendant. He would, in such an event, lose the benefit of his exceptions, and of the trial of the matters in issue before the jury; for the appeal on the part of Greenwell, is improperly here, and must be dismissed; the judgment below having been in his favor, there was nothing to appeal from. When however, the cause goes back to the County Court, should the plaintiff insist upon the judgment being rendered in his favor, then the defendant will be in a condition to prosecute his appeal, and upon producing the record here, will be entitled to a reversal upon the third bill of exceptions. We have presented our opinion upon these bills of exceptions, in order that a future appeal upon them might be thereby prevented, and supposing, that by the expression of our opinions upon them, the motion in arrest would be withdrawn, and that a new trial would be consented to by the parties. The appeal on the part of Greenwell is dismissed with costs; and the judgment in the appeal of the State use of the President and Trustees of Charlotte Hall School is reversed, and & procedendo awarded. JUDGMENT REVERSED AND PROCEDENDO AWARDED.