Goldsborough v. Cradie

28 Md. 477 | Md. | 1868

Stewart, J.,

delivered the opinion of this Court.

In the refusal of the Court below in this ease, to allow the prayer of the defendant in the first exception, (designated in the record No. 2,) and the third prayer in the second exception, (designated No. 5,) referring to the non-joinder of Palmer as one of the plaintiffs, there is no ,cause of reversal, because in the progress of the case, the defendant had the benefit of the propositions of law, embraced therein by the allowanoe of his seventh prayer in the 4th exception. Baltimore and Ohio R. R. vs. Reiley, 14 Md. Rep., 424.

In the second exception -we concur with the ruling below in the rejection of the prayers of the defendant, Nos. 1 and 2, {designated in the record, Nos. 3 and 4.) It was not necessary that all of the plaintiffs should have been originally concerned in arresting, securing and restoring the negroes .to the owner ; each one may have performed a part in the entire transaction, the whole of which, it was essential, should be proved, but it was not incumbent upon all of them to have acted at the same time. In order to establish a valid claim for their services, they were required to prove that it was through their agency, the alleged apprehension and returning of the property were secured, but that might have been effected by each performing a part. The right to demand the reward offered, could not be maintained until the negroes were -apprehended and placed in jail, in conformity to the advertisement, or delivered to the owner or his agent, and any person who aided in accomplishing such result, might join in a suit to recover the same. The second prayer in this exception (designated No. 4) is obnoxious to similar objection. If the jury believed that Clymer participated .in the securing and delivery of the negroes, although not in the arrest, he might properly be joined in the action.

We see no ground of reversal in the third-exception. The statement of the negroes were not evidence per se, and could only be introduced, if objected to, where they were a part of the res gestee, but not as distinct and independent testimony, as proposed to be detailed by Bath, the defendant’s witness. No testimony had been previously offered by the plaintiffs, of any declarations of the negroes, made at a time and place, in reference to which the witness, Bath, was required to testify. The testimony of the plaintiffs’ witness, Ratelidge, related to a different time.

In the fourth exception, the fourth prayer of the defendant, ought to have been granted. Upon no fair and just princi- ' pie could the reward be claimed, unless at the time of their alleged apprehension, the negroes still continued absconding, and runaways from their owner., If there were no- evidence that the plaintiffs had notice of the reward offered, or that they had bona fide apprehended the negroes, as still absconding and runaways, if such were the fact, what just or legal demand had they to the reward? If the negroes were returning, to their owner, of which the plaintiffs or either of them were apprized, we do not see upon what grounds of law or justice,, or upon any theory of a contract, express or implied, the reward offered could be claimed by the plaintiffs under such circumstances. On the contrary, if the- plaintiffs, or either of them, having learned that the negroes were in the act of returning home to their owner, and would do so of their own motion, or with any one offering to take them, designed to avail themselves of such opportunity to arrest them, and • to prevent, hinder and intercept their voluntary return home,, with a view to their own gain, at the expense of the owner, such conduct and combination, so far from entitling them to a reward, would furnish evidence of a conspiracy to injure and defraud the owner of the negroes. 1 Sanders’ Pl. and Ev., 137 to 142; Wall vs. Proctor, 3 Ky., Metcalf, 447; Lowning vs. City of Boston, 7 Mass., Metcalf, 409.

In the fifth exception we see no ground of reversal in Nos. 1, 2, and 3 prayers of the plaintiff, (designated Nos. 2, 3, and 4,) but the 4th prayer (designated No. 5,) ought not to have-been granted. Although the legal proposition, involved in this prayer, according to the construction we put upon it, that an assignment or transfer by the plaintiffs, after their right of action had accrued, if such were the fact, could not operate to-defeat the action, and any evidence introduced for such purpose should not be regarded, yet the prayer was too general, and indefinite, and might mislead the jury and exclude from their consideration, testimony that ought to have been regarded by them. The services alleged to have been rendered in the apprehension and delivery of the negroes, and the claim for compensation, were subjects of enquiry before the jury. Any competent evidence or declarations of the plaintiffs, or any of them, in reference thereto, before or after the alleged delivery of the negroes, or in regard to the transfer or assignment of any interest they may have had in the reward, tending to prove their own estimate of the service, or that they had no just claim, or had abandoned any demand they may have had, might be given in evidence for such purpose. Story on Contracts, see. 443.

(Decided 20th March, 1868.)

The plaintiffs could transfer no better or different claim than they themselves had, and their assignees would take it, subject to all the legal or equitable defences against it. But if the claim were a valid one, the fact of its being transferred to other parties, who had instituted suit in their names, would not defeat the action, nor affect the defence of the defendant against them or their assignees, who occupied no better position than they did at the time of the assignment. Act of 1829, ch. 51.

In the sixth exception, where the Court below directed the defendant’s prayers Ros. 1 and 3, in the 4th exception, which had been granted, or conceded, to be afterwards withdrawn at the instance of the plaintiffs, we see no sufficient reason for reversal. In the trial of the cause below, the Court is required to exercise a sound discretion within the rules of law. It was the right and duty of the Court, when called on for the purpose, to instruct the jury upon any prayers presented before the case was closed, and if no injustice has been done to any party by its action in the trial, there is no occasion for us to reverse its ruling in this particular.

Judgment reversed and proeedendo awarded.

Baktol, C. J., dissented.