Blackburn v. Beall

Bowie, C. J., delivered the opinion of this Court: The appellant’s counsel assume in their brief, that the Act of 1856, ch. 112, was in force when the sci. fa. in this case was issued. Upon reference to the record it appears, the sci. fa. was tested on the 4th of February 1860, and issued on the 10th of March ensuing; the Code went into operation on the 12th of January preceding. It is therefore to the provisions of the latter we are to look, as far as the questions of pleading are affected by the statute law of this State. The principles of the Code operating on the pleadings in this case, will be found in Art. 75, secs. 3, 6 and 7. By these “any plea necessary to form a legal defence shall be sufficient without reference to mere form.” “No special demurrer shall be allowed in any civil case, and no general demurrer for a mere informal statement of a cause of action or defence.” The defendant availing himself of the liberal spirit of these clauses, has presented the facts which he deemed proper for defence without technical form, in five pleas; three, in the nature of pleas of release; two, in the nature of pleas of payment or satisfaction,. Belease and payment, — 230 — according to all' the authorities, are good pleas to a scire facias. If the facts specially pleaded by the defendant did not bring these pleas within the legal description of these respective classes, the plaintiff should have demurred, by replying and joining issue, he admits their sufficiency in law. Where there is any imperfection or omission whatever in any pleading, which would be a fatal objection on demurrer. yet if the issue joined be such as necessarily required on the trial proof of the facts so imperfectly stated or omitted, such imperfection or omission shall be cured by the verdict. Sec. 9, Art. 75, Code. Of the six hills of exceptions contained in the record, the first and second are taken to the admission of evidence offered Icy the defendant. The third and sixth to the exclusion of evidence offered by the plaintiff. The fourth, to the refusal of the Court to grant the 5th, 6th, 7th and 8th prayers of the plaintiff, and to the modification of the 2nd, 3rd and 4th prayers of the plaintiff at the defendant’s instance. The fifth exception is taken to the granting of the 2nd and 3rd prayers of the defendant. The evidence which forms the subject of the appellant's first bill of exception, was a paper purporting to be a receipt or release, accompanied at the time of its production, by a declaration of the defendant’s counsel, that they intended, in connection with the paper, to show by the record that William Z. Beall, the defendant’s testator, was a surety for Charles Digges, in the original single bill on which the judgment referred to in the paper, was obtained. This declaration of the counsel, in relation to this and other evidence, it is said was not redeemed, and it was the duty of the Court, ex officio, at the close of the trial to direct the jury to disregard such testimony. The duty of the Court, in such cases, is correctly laid down in Atwell vs. Miller, &c., 6 Md. Rep., 26. The assurance that this evidence would be followed up by proof of other circumstances and facts material and competent, with which it would — 231 — have an important connection, rendered its admission proper. If, however, it should turn out that this assurance was not fulfilled, it would bo the duty of the Court, upon application of the counsel, to direct the jury not to regard it. It is objected, that the paper excepted to was not admissible as a release, not being under seal, or competent evidence under the 1st, 2nd and 5th pleas, all of which aver a release and discharge of Win, Z. Beall, whose death anterior to the release, would make it inadmissible as a release to his executor. This objection assumes that pleas of release technically speaking, were pleaded and rests on the variance between the allegata and probata. The pleas referred to are not, technically speaking, pleas of release. They are special pleas to the scire facias shewing cause why execution should not go. If they were not sufficient in law, the plaintiff, as before suggested, should have demurred. Such defences were held good on demurrer by tbis Court in the case of Booth vs. Campbell, trustee of Harper, 15 Md. Rep., 574; where it is said a release or discharge of one of the defendants would operate as a discharge of all. This principle is so well settled as to require no authorities, to be cited in its support. If the matters alleged in the plea are sufficient in law to operate as a discharge of E. B. Fitzgerald from all liability upon the judgment, the inevitable consequence is, that it cannot be enforced against the appellant, &e. In that case it was held that a pica of accord and satisfaction was a valid defence to the scire facias. It is further objected, that the paper excepted to, was not admissible under the 3rd and 4th pleas. These are informal pleas of payment. The third avers, “ that after the said judgments recited in the plea last aforesaid were rendered, and before the issuing of the seire facias in this case, the said Charles Digges, the principal alleged in the said mentioned debt, paid and satisfied the plaintiff’s said judgments, by the rendition of certain services and other — 232 — valuable considerations, before that time received by the said David Crawfurd from the said Charles Digges.” The fourth avers, “ that before the issuing of the scire facias in this case, the said Charles Digges, the principal obligor in the said judgments mentioned, paid and discharged the plaintiff’s claim on said judgment recited in the scire facias aforesaid. The gist of the plea of payment under the statute of Anne, ch. 14, is that the defendant paid the plaintiff the sum of- in satisfaction and discharge of the judgment aforesaid, which the plaintiff received and accepted in full satisfaction and discharge. The testimony offered by the defendant would have been admissible under' the old rules of pleading; if so, it must be under the Code, the object of which was to prevent a too technical nicety in pleading and practice. The evidence which forms the subject of the seóond exception, is the records, docket entries, &c., in the case of David Crawfurd vs. Charles Digges, Norah Digges, and the late Wm. Z. Beall. At the time of offering these,.the defendant’s counsel stated that he intended to show by them, that the judgment recited in the scire facias and the judgment against Charles and Norah Digges, were recovered for the same debt on a joint and several single bill, to the said David Crawfurd, signed by the said Charles arid Norah Digges, and the defendant’s testator. The record shows the original cause of action was a joint and several single bill for §2000, executed by the parties above named, who were sued jointly; that a judgment was confessed by the two first named, and the death of the third suggested, after which a separate action was docketed against his executor, the defendant, now appellee, and judgment rendered against him on the same nar. and single bill, which were' filed in the original cause against Charles and Norah Digges and William Z. Eeall. The appellant’s objection is, that as the pleas and the paper offered in evidence, described or referred only to a judg — 233 — ment of Crawfurd against Wm. Z. Beall, the record of a judgment against Washington Beall, Exr. of Wm., did not sustain the pleas, or agree with the release pleaded, whether the judgment referred to in the receipt of David Crawfurd arid purporting to be thereby released, was the’ judgment described in the record and proceedings offered’ in evidence, arid rendered for the same debt or cause of action as the judgment on which the sci. fa. then pending was issued, was a question for the jury, the testimony offered tended to establish their identity, and was therefore riuinissible. The third exception is taken to the refusal of the Coffri! to' admit evidence of certain characteristics of the plaintiff’s intestate, on cross-examination of a witness of the deféridant, connected with a declaration by the plaintiff’s counsel, that lie would show that shortly before tbe date of the' supposed paper writing, purporting to be a receipt, the’ plaintiff’s intestate was pressing tbe collection of tbe said judgment. This evidence was offered for tbe purpose of impeaching tbe genuineness of the signature of the plaintiff’s intestate, and of showing the same was a forgery. Great as is the latitude allowed on cross-examinations, it does not extend so far as to make testimony, otherwise incompetent, admissible, unless the opposite party by bis course of examination has warranted it. The bill of exceptions, in this instance, does not show that any evidence' had been offered by the defendant, relative to the charac¿eristics or conduct of tbe plaintiff by tbe witness under examination, or any other witness, to justify the introduction of evidence of the character or conduct of the plaintiff’s intestate. Independently of which, the evidence proposed conflicted with a cardinal maxim of the law, which prohibits a party’s acts or declarations to bo given in evidence in his own cause. The intimation, that the object of the testimony was to establish forgery or fraud, does not fake it out of the reason of the rule, on the contrary, th& — 234 — higher the crime or deeper the fraud, sought to be established, the more stringently the rules of evidence should be enforced. The authorities which sanction the admission of facts however slight, which tend to prove the issue of fraud, contemplate that the facts should proceed from disinterested and competent sources, and be proved by witnesses above all legal exception. The fourth exception is taken to the rejection of certain enumerated prayers, and the granting of others with a modification, upon which the point is raised, “that the appellants had a right to have the opinion of the Oeurt below upon the proposition submitted by him as submitted, and to have the decision upon those propositions reviewed by this Court.” In support of which they rely upon Whiteford vs. Burckmyer & Adams, 1 Gill, 127. Birney vs. W. & N. Y. Tel. Co., 18 Md. Rep., 341. The proposition for which these cases are cited, is not of universal and indiscriminate application, but is to be understood as applied to the facts then before the Court in the first named case. The subject was the notice necessary, to enable an endorsee to recover against an endorser of a bill of exchange, drawn on a house in Charleston by a house in Baltimore, and protested for non-acceptance. The defendant’s prayer correctly -stated the law of the case upon the whole evidence. The plaintiff offered a qualification, speaking of which, the Court said: “In effect it makes the appellant to ask the Court to say to the jury, the plaintiff cannot recover without a certain description of proof, but the facts in evidence may be regarded as such proof.” No party can he coerced into such an attitude. If the preposition asked for is not justified by the evidence, or is not in accordance with the Court’s opinion of the law, they may refuse it altogether, or they may state in what respects they dissent from it, but the opposite party has not the right to annex modifications to it against the consent of the party. In the case of The State, use of Stevenson, vs. Reigart, 1 — 235 — Gill, 130, at the same term at which the case of Whiteford vs. Burckmyer was tried, and before the same judges, it was held, that the first, second, third and fifth prayers made to the Court below by the plaintiff, were properly rejected, as being mere abstract legal propositions, putting the agreement entirely out of view upon which the defendant rests his claim to retain. Stevenson vs. Reigart, 1 Gill, 30. At the succeeding December term, in the case of Byer vs. Entmire & Besore, argued before the whole bénch, Dorsey, Justice, delivering the unanimous opinion of the Court, speaking of the rejection of the appellant’s prayer, said: “Before the Court could grant the prayer thus made to it, it must assume the non-existence of all the other oral testimony given in the cause; because, by the prayer, no part of it is submitted to the finding of the jury.” 2 Gill, 162. Day vs. Gorsuch & Day, 4 Md. Rep., 269, in which C. J. Le Grand said:-- “The Court of Appeals in Whiteford vs. Burckmyer & Adams, have recognised the right of a party to segregate any portion of the facts of a case from the whole body, and asks the instruction of the Court on them,, and it is for the other party, if he desires it, to ask the opinion of the Court on the whole testimony,” — was like the case-to which he referred, a question on a single fact, the conr struction of a mittimus, in which the instruction asked for-was correct. So in Atwell vs. Miller & Mayhew, 6 Md. Rep., 19, the single question was delivery, of which the Court said: “When, however, the delivery is not actual, but symbolical or constructive, then, as we have said, it'is a mixed question of law and fact, and either party has the right to ask the instruction of the Court as to the legal effect of any particular circumstance which may be offered to the jury, and from which the delivery is to be deduced.” In Carroll vs. McTavish, 7 Md. Rep., 366, where the objection was that the plaintiff’s prayer, based upon his own evidence, should not have been granted, because it ignored the test — 236 — imony offered hy the defendant; the Court held: “It is certainly true, that when the proof of the defendant, if bejieved by the jury, w.ould establish any proposition incon? pistent with the theory of the plaintiff’s prayer, ivhieh is pased upon his Qion evidence, such prayer cannot be given, because it must assume or admit the truth of all the defendant’s proof on the subject.” The proposition is stated still more clearly in Wells & Miller, vs. Turner, 16 Md. Rep., 142. Each party had the right to call on the Court for instructions, based on his view of the case, if the evidence relied on was legally sufficient to warrant the conclusion sought to be deduced from it. “If an illustration be needed, we muy state the familiar distinctiop between a collateral and original undertaking, where jt is sought to charge one person for the piece of gopds sold and delivered to another, there being no writip g to bind the party. The plaintiff may ask the Court to pay to the jury that they must find for him, if they believe', from all the evidence, that credit was given to the defendant, and so the defendant may plaim the verdict if the jury find that credit was given to the party receiving the goods.” This Court in the case of Birney vs. The N. Y. Telegraph Company, referred to the case of Whiteford vs. Burckmyer & Adams, as sustaining the prayer in that casp, but the plaintiff’s prayer wap on a written statement of facts agreed on by the counsel and read in evidence to the jury, referring to which this Court, quoting from 11 Md. Rep., 185, say; “It is well settled, that eyen where fhe proof is all on one side, the finding of the facts must be left to the jury; but this is not necessary when the case is tried upon admissions at the bar.” In such a case there was no ground for objecting to an instruction as to the legal effect of what was thus agreed upon. This Court in Adams vs. Capron & Snowden, ante p. 186, decided at the present term, replying to a similar argument, use this language: “It is no answer to this proposition to say that an instruction may bo had upon any — 237 — given statement of facts, for even upon the authority of Whiteford vs. Burckmyer, 1 Gill, 127, that can be done only when the instruction asked is subordinate to, or in aid of a theory which embraces all the facts material to establish or defeat the right in controversy.” The effect of an instruction,, that a plaintiff is entitled to recover upon the finding of certain particular facts, is to withdraw from tho Jury the finding of any other fact that would “qualify or .defeat tho right asserted.” These cases show there are two classes of prayers, or instructions, referred to in the books, which are not to be confounded with each other; one, where it is sought to obtain the instruction of the Court upon tho legal effect of a particular instrument, as q,r&ibtimus, or a particular fact, as notice or want of notiee, or it may be, of a combination of ijacts, (the instrument or facts being proved or agreed upon,) in which the party desiring the instruction may sever them from the mass and submit them to tho Court, taking care to deduce the proper legal conclusion from the premises. In such a case the opposite party has no right to modify or change, because both the facts and the law are right. On the other hand there is a class, in which all that is offered in evidence on either side must constitute the basis of the prayer, if the party asking it seeks to establish a legal proposition, conflicting with his adversary’s proposition depending on the proof of the same facts. The second, third and fourth prayers of the plaintiff were refused as offered, hut granted as modified by the defendant’s suggestion. That the prayers might have been rejected absolutely or modified by the Court, is admitted, but it is contended they should not have been modified at the instance of the defendant. If a legal proposition is wrong it must be rejected, from whatever source the suggestion of the error proceeds. To say the Court may not 'adopt a view of a case, however correct, because it first emanated from the counsel opposed to the error, cannot he law. Most of the views ultimately decided, proceed from the counsel on — 238 — one side or the other. If the Court has the power to originate an objection, they have the right to adopt. The whole duty of counsel is to enlighten and aid the Court by theis arguments and objections, and the province of the Courtis to direct, control and decide, according to the right. These prayers do not ignore the existence of the receipt, but, from accident or design, omit entirely to refer to the legal effect of that instrument, as prima facie evidence of the facts recited therein. It seems to us nearly parallel in principle to the case of Stevenson vs. Reigart. There the prayers were abstract legal propositions, keeping the agreement on which the defence relied, entirely. out of view. Here the handwriting of David Crawfurd, the signature to the receipt, is referred to, but in terms which imply a doubt of its being bona fide, and entirely ignore its claims as'evidence. They imply that the facts recited in that pas-per are to be proved aliunde, by other and independent proof, and that the burden of proving them is on the defes,dant. That they are subject to such a construction is sufficient to justify the Court below in rejecting them, and adopting the modification which declared the weight the receipt was entitled to as prima facie proof, if genuine. The fifth prayer of the plaintiff, the rejection of which was excepted to in the fourth hill of exceptions, requires the Court to instruct the jury, that if they find from the evidence, the said release not being under seal, that before or at the time of the date of the release the said David received no valuable consideration from the sai.d Charles Digges, or services of value from him, they may find, the said release to be fraudulent. This prayer, like others commented on, was calculated to mislead the jury,, the words, “ not being under seal,” being used to negativé the presumption of consideration, of which the receipt was prima facie evidence. There being no evidence on the part of the appellant to rebut the prima facie proof offered by the appellees, the prayer had no evidence to support it, and was therefore properly rejected. The sixth prayer was cor — 239 — rect as an abstract legal proposition, but the pleas to which it refers, not being technically pleas of release, but special pleas in bar, on which the appellant had taken issue, the instruction tended to exclude evidence which was properly admitted on the issues joined, and was therefore correctly refused. (Decided March 11th, 1864.) The plaintiff’s seventh prayer declares that he is entitled to recover upon the issues joined on the second and third pleas, unless the jury shall find from the evidence that the judgment recited in the scire facias was paid by the defendant’s testator, or some other of the defendants to the said judgment. The effect of this prayer was, to preclude the defendant from the benefit of the discharge given by the plaintiff’s intestate to the principal debtor. If the principal was discharged, the sureties or co-obligors were; it was immaterial by whom the debt was discharged, therefore to confine the proof to the payment in money of the judgment recited in the scire facias, was to exclude the receipt from the consideration of the jury, and therefore erroneous, The eighth prayer seems to be a mere formal recapitulation of objections raised by the preceding prayers, and has been substantially answered in our remarks upon them. The second and third prayers of the defendant, granted by the Court, constitute the ground of the plaintiff’s fifth bill of exceptions. These prayers are but corollaries of the propositions previously granted by the Court, upon the prayers of the plaintiffs as modified. They declare succinctly and clearly the law applicable to the case. Finding no error in the rulings of the Court below, the judgment must be affirmed. Judgment affirmed.