Dennison v. Yost

61 Md. 139 | Md. | 1883

Irving, J.,

delivered the opinion of the Court.

This appeal was taken from an order of the Circuit Court for Carroll County overruling the demurrer which appellant had filed to appellee’s bill of complaint, and fining the appellant ten dollars and requiring him to pay the costs, and holding him in contempt until fine and costs should be paid.

The hill was filed to obtain injunction restraining the appellant from selling, assigning or disposing of a certain .single bill, purporting to he the single bill of the appellee for two thousand dollars, dated 26th of March, 1882, and payable to Samuel D. Miller, sixty days after date ; which the complainant (appellee) alleged to be a forgery. The bill charged, that the defendant was in possession thereof endeavoring to sell the same, pretending that it had been assigned to him by Samuel D. Miller, the professed payee. The hill charges that this single hill was forged by either Miller or Dennison, the complainant being unable to state positively which. It charges, that the appellant well knew the single hill to he forged and false, yet refused to deliver the same up, intending to assign the same to some other person, for the purpose of harassing the complainant. The-bill prays for injunction to prevent the transfer of the single hill; and that the same may he compelled to he delivered up to he destroyed; and that the defendant may answer the hill; and for other and further relief such as the case may require. Preliminary injunction was granted; subpoena issued and was served; and the defendant demurred. The ground of demurrer is thus stated: “ that the complainant hath not, in and by his said bill, stated such a case, as doth, or ought to entitle him to such discovery or relief as is thereby sought, or prayed for, from- or against him, this defendant.”

In Singery vs. Attorney-General, 2 H. & J., 497, it is. said: “ Although, on a hill in chancery charging forgery, the defendant cannot be compelled to answer any fact which will criminate himself, yet the Court of Chancery has-jurisdiction over the case; and on proof of the forgery, by which a fraud has been committed, will grant relief by vacating the grant or deed from whence the injury has arisen,, or will make such decree as the circumstances of the case render necessary.” This principle was subsequently affirmed by this Court in Wolf vs. Wolf’s Ex’r, 2 H. & G., 382, and is in strict accordance with the doctrine laid down in Story’s Equity Pleading, secs. 524, 525, and 575, and Daniel’s Ch. Pr., pages 561-2 and 3.

(Decided 21st December, 1883.)

It is abundantly clear, from all tbe authorities, that a Court of equity will vacate a forged paper, or direct its surrender for destruction, when the forgery or fraudulent character of the paper is established by proof. A demurrer, therefore, which denied the right to the relief prayed for, upon the concession of the truth of the facts alleged, was entirely too broad, and was properly overruled. The bill had called upon the defendants to answer charges which certainly imputed punishable offence against the law; and so far as the demurrer was intended to assert his right to protection from answering anything that would criminate him, approved practice justifies that method of raising the question. In this case, however, the demurrer was not confined to the assertion of the defendant’s privilege, but went to the extent of denying the complainant’s right to the relief sought on the facts alleged. It could only be dealt with as a whole, and was, of necessity, overruled. We find nothing in the form of the order appealed from, nor in the case of Trego vs. Skinner, 42 Md., 433, relied on by appellant’s counsel, upon which to found error. The order is in strict conformity with section 102, of Article 16 of the Code. In the imposition of costs, the order does not, in words confine the costs to the costs of the demurrer, but the natural and proper construction of the order, when considered in connection with the section 102, with reference to which it was drawn, would confine the costs allowed to those accruing on the demurrer. The order must be affirmed.

Order affirmed.