41 Md. 435 | Md. | 1875
delivered the opinion of the Court.
This is an action upon a sheriff’s bond to recover under the Act of 1861, ch. 7, the amount of exemption fixed by that Act. The declaration charges, that the sheriff, by virtue -of several writs of fieri facias, seized and took in execution a farm of Twilley, the appellee, “ and after giv
Issue was taken to the second plea, and a demurrer filed to th e first, third, fourth and fifth pleas. The demurrer to
In sustaining the demurrer to these pleas, we think the Circuit Court decided correctly. It is no defence for a sheriff, if he has received money which is properly payable to another, to say, when sued for it, as he has done in his third plea, that the party failed to make any claim or demand for it until a long time after it had been distributed and applied by him to some other purpose or claimant. When money comes into his hands as sheriff, it is his duty to distribute and apply it to the parties entitled, and length of time in making a demand for it will not excuse him — unless such a period of time has elapsed as will enable him to defend himself and his bond by a formal plea of limitation^. It is, however, argued, that inasmuch as this plea charges that Twilley “had notice of the said writs of fieri facias, and of all the proceedings of the sheriff thereunder,” and failed to make any demand upon him until after the proceeds of the sale of his land had been distributed and applied, it sets up as against him an estoppel in pais, and a number of cases is referred to in support of the argument. It will be found, in looking at the authorities upon this point, that if it is sought to sustain the plea upon the ground of an estoppel, the allegations contained in it do not go far enough. It is not sufficient to charge.that the plaintiff did certain acts, or made certain admissions, but it must also be charged that such acts or admissions influenced the other party in his conduct. In the case of Heane vs. Rogers, 9 Bar. & Cres., 577, cited in Alexander vs. Walter, 8 G., 252, it is said — “ There is no doubt that the express admissions of a party to the suit, or admissions implied from his conduct, are evidence against him ; but we think he is at liberty to prove that such admissions were mistaken or were untrue, and is not estopped or concluded by them unless another person has been induced by them to alter his condition.
The question presented by the demurrer to the fourth plea, is the effect upon this case of the Act of 1870, ch. 195, exceptixxg noxx-residents from any benefit of an exemption. The law of 1861, ch. 7, being general in its terms, exempts tlxe property of every one alike from execution to the extent of one hundred dollars. The law of 1870, which repeals the 6th sectioix of that law and restricts its benefits to actual bona fide residents of this State, went into effect on the 4th of April, 1870. Tlxe
The power of the Legislature to repeal’ at will laws exempting certain property from execution or taxation, unless they are in the nature of a contract, is not doubted. Laws of this kind rest upon reasons of public policy, and are changed as the varying circumstances may require. Cooley on Con. Lim., sec. 883. And although “ the citizen has no vested right in statutory privileges and exemptions,” (Ibid.) it cannot be doubted he may acquire a vested right under the operation of the statute, which cannot be affected by its repeal. If at the time of the levy in this case, a part of the land taken in execution had been set apart for Twilley, without doubt his right would have immediately attached, and could hot have been affected by a subsequent repealing Act. As this division could not be made, without loss and injury to all parties concerned, the event occurred provided for by the 3rd section of the Act of 1861, which declares, that “then the whole shall be sold, and' the defendant whose property is so’ sold, shall have one hundred dollars of the proceeds in money.” By the terms of this section, and in reading'it in connection with the preceding one in regard to a division-of the property, we think the right of the party to this one hundred dollars is fixed immediately upon the full consummation of the sale, and that it is then complete and vested. This being so the right of Twilley to the money sued for in this-case became fixed on the 1st day of February, 1870, and was so far complete and vested that it is not affected by the repealing Act of the 4th of April, 1870. The many decisions that penalties cannot be enforced by a judgment, after a repealing Act, even if-passed while the caséis pend
The fifth plea, it may be assumed, lias been abandoned by the appellants’ counsel, as they have made no reference to it in their argument. A sheriff, in a suit like tlie present one, cannot plead as a matter of defence, that the plaintiff “ had no legal estate ” in the farm sold. The plea tenders a collateral issue, and is in no respect an answer to the breach sot out in the declaration. The charge is, that the sheriff levied upon and sold the laud of the plaintiff under executions against him, and received the purchase money therefor, out of which purchase money the plaintiff claims to be entitled to a certain sum. If these allegations are established it is wholly immaterial whether the plaintiff had a “legal estate” in the land sold, or not.
The next exception is to the rejection of testimony. The defendants, to prove that a certain John Manning acted as the agent of Twilley, and in that capacity forbid the sale, placed Maiming upon the stand, who proved that he was not the agent of Twilley. They then offered to prove by James A. Bramble, one of the defendants, that Manning was at the sale, and made statements from which he understood him to be the agent of Twilley. This offer, upon objection, was refused by the Court. There are many objections fatal to the admissibility of such proof. It was an offer to introduce in evidence the inferences of a witness from what he had heard, and also the declarations of a
The next exception is also to the rejection of testimony. The defendants to prove the agency of Manning, and “ also to prove an estoppel of the said Twilley in this suit,” offered the record of a case in the Circuit Court for Dorchester county, for rents, between Lecompte, purchaser of the land at the sheriff’s sale, and Handley, trustee under the will through which Twilley’s interest in the land came, “it being also proved that said Twilley’s interest in said rents had been assigned to John Manning, who employed counsel to defend said suit.” That record is not contained in the record before us, and we cannot see from the offer, as it is presented by the record here, what possible connection that case can have with the present, either in establishing the agency of Manning, or in proof of an estoppel. The proof that Manning was the assignee of the rents sued for explains why he should have employed counsel in the case, and very effectually rebuts any presumption of agency which might otherwise have attached from his acts in connection with it. But even if an agency in that particular case was established, it would not be legally sufficient to establish an agency in the present one without further proof, and there is no offer or pretence that any further, or other proof would be given. How this record would establish an estoppel upon Twilley does not appear. We think, therefore, the evidence in this exception, was also properly rejected. The evidence in the next exception was offered to support the first plea, which alleges that the money was brought into Court by the sheriff, and “ duly distributed and applied under the order and direction of the Court.” The proof offered does not support the plea. It is stated in the exception “ that the action of the Court was, and was intended to be entirely unofficial, and only accorded as advice, which they were assured would be sat
This brings us to the consideration of the prayers in the case. ITom what has already been said it is apparent that no valid, legal objection has been interposed to the right of the plaintiff' to recover. The Court, therefore, upon his prayer, properly instructed the jury, that if they believe the (acts set forth in the declaration, they must find for the plaintiff. The direction given hy the Court, as to the amount of damages to he assessed hy them, has not been objected to, and is undoubtedly right.
The three prayers offered by the defendants, present the question of waiver in different aspects. They could not have been granted, because there was no evidence to support them. Upon the proof in the record, it is not urged that they should have been granted; for the only ground taken in the argument to support them is, that “if the evidence set forth in the exceptions had been admitted, the instructions asked for hy the appellants correctly stated the law of the case.” This evidence we have ruled was properly rejected, and it is unnecessary to say whether the prayers should have been granted, even if the evidence had been permitted to go to the jury.
Judgment affirmed.