Brandt v. Mickle

Robinson, J., delivered the opinion of this Court. The Act of 1828, ch. 165, conferred upon the County Courts, the appointment of commissioners in each county, to take depositions of witnesses in civil causes. The second section directs that the depositions so taken, shall be returned by the commissioner to the clerk of the Court in which it shall be intended to use them, and if such clerk shall be any other than that by which he was appointed, there shall be annexed to his return, a certificate by the clerk, under the seal of the Court, that he is such commissioner. The obvious design of the law, was to provide an efficient and convenient mode for the taken of depositions. It not only provides for the appointment of commissioners in each county, but empowers them to take depositions in all causes, whether pending in the Courts of their respective counties, or in any other Court in the State. The power to act out of the county for which they are appointed is no where given, nor was it necessary to accomplish the manifest intention of the framers of the law.. Having conferred upon them the power to take depositions in their respective counties, in all causes pending [447] in said counties or elsewhere, every requirement of the law was gratified; and we arc not to presume, it was intended to impose upon suitors the unnecessary expense and inconvenience of sending commissioners into other counties, to perform a duty which it is admitted could bo discharged by the resident commissioner. It is our opinion, therefore, that the Act of 1828, did not confer upon the commissioner, appointed by the Circuit Court for Harford county, the power to take depositions in the city of Baltimore. It does not appear by the record that the deposition was taken by consent. Notice, it is true, was served upon Mr. Scott, counsel for appellee, that the plaintiff would take the deposition of the notary, in Baltimore, on the 13th of July, at 10 o’clock, A. M., and it also appears that the hour was afterwards changed by consent to 4 o’clock, P. M. But it does not appear that the counsel for defendant agreed that the commissioner should take the depositions in Baltimore, or that he waived objections to the mode and manner in which it was taken. "What would have been the effect of a waiver of all objections on the part of the defendant, we deem unnecessary to decide. The plaintiff’s second prayer was properly refused. The law is firmly established, that the contract of the endorser is such, that notice of a demand and refusal is essential, to entitle the holder to recover. The mus is upon the plaintiff, who claims exemption from the operation of this general rule. In this State, a transfer of all the maker’s property to the endorser, to indemnify him against loss for his liability, exempts the holder from the necessity of proving or making a demand. Duvall vs. Farmers’ Bank of Maryland, 9 G. & J., 31. In delivering the opinion of the Court in that case, Judge Ajrchejj admitted that if it were a new question, it might admit of some discussion, unless shown to be sufficient to meet the liability of the endorser; but inasmuch as it had been decided in other States, the Court felt and recognized the importance of uniformity of the law in regard to commercial paper. An examination of the authorities referred to in that case, will [448] show that the general doctrine of waiver, growing out of the transfer of all of the maker’s property to the endorser, is based upon the following reasons: First, that having secured all the maker’s property, for the express purpose of meeting his endorsements, he must be considered as having waived the condition of his liability, and engage with the maker on receiving all of the property, to take up the note. Secondly, that having thus stripped the maker of all his property, and received all the security he could give, the endorser must know that a demand upon the maker would be fruitless. Bond vs. Farnham, 5 Mass., 170; Barton vs. Baker, 1 S. & Rawle, 334. The plaintiff’s prayer asserts the proposition, that an assignment of but part of the maker’s property, dispenses with demand and notice, provided, the transfer includes all the property the maker may hold at the time of the maturity of the notes. This too, in the absence of any declarations or acts of the endorser at the time of the transfer, showing that he intended to make himself primarily responsible for the debt. Such a proposition is not sustained so far as we know, by any adjudged case — certainly not in this State. On the contrary, in Duvall vs. Farmers’ Bank of Maryland, 9 G. & J., 31, it was expressly decided that the deed of the 9th of February, 1825, did not dispense with notice, inasmuch as it did not convey all the maker’s property — the seventy acres of land and the personal property being excepted. Nor can it be sustained upon the principles which under-lie all the decisions in regard to assignments to endorsers and constructive waiver. A partial transfer does not necessarily deprive the maker of the ability to meet^ his notes. Ample means may be left with him to discharge his engagements, and to which the holder may look with confidence for the payment of the note at muturity, nor would it necessarily follow in such a case, that the endorser undertook to make himself primarily responsible for the debt, knowing that his liability is conditional. Prudent considerations may have suggested the propriety of taking some security to meet any legal re [449] sponsibility arising from bis endorsements. The argument that if lie had all the maker’s property, notice would be of no avail, applies with equal force in cases of bankruptcy and notorious insolvency, and yet in the latter it was conceded that notice was necessary. Whatever may have been the purpose of the rule, in requiring notice as laid down in the earlier eases, “ the requirement of it has settled down into a strict legal right, and appeal to original reasons become less frequent and less influential. 1 Parsons on Bills and Notes, 574; 1 Smith’s Leading Cases, Law Lib., 3d Series, top page, 58. (Decided 20th March, 1868.) We also concur with the Court in granting the defendant’s sixth prayer. The gift to the wife was previous to the Act of 1853, and in order to exclude! the marital rights of the husband in the property, a clear intention in the donor, that it should be for the separate use of the wife, must appear. Carroll vs. Lee, Adm’r of Lee, 3 G. & J., 504. The check was the gift of the father to Mrs. .Hlginbotham, in view oí her marriage, but there is no evidence that at the time of the gift, the donor intended it should be for the sole and separate use of the daughter, nor is it so alleged in the bill of sale, the averment being merely that the furniture was purchased with the proceeds of the chock, advanced by the father. Technical words, it is true, are not necessary to create a separate estate in the wife, but adequate language! mast be used in making the gift, to manifest a decided intention to transfer a separate interest. Carroll vs. Lee, Adm’r of Lee, 3 G. & J., 504. Words, “for her use and benefit,” employed in making a gift or transfer of property, are not sufficient to convey a separate estate in the wife. Turton’s Ex’rs vs. Turton, 6 Md. Rep., 375. The evidence in the record before us, does not certainly present a stronger case. For these reasons the judgment must be affirmed. Judgment affirmed.