Keedy v. Newcomer, 1 Md. 241

Keedy v. Newcomer

1 Md. 241 | Md. | 1851

*250The opinion of the court was delivered by

Le Grand, C. J.

We discover error in the ruling of the county court, in regard to the sixth and seventh exceptions, but in nothing else.

After giving, testimony to show that Barnes had property, both personal and real, sufficient to enable the sheriff to have satisfied out of it the fieri facias issued by the plaintiff, the latter proposed to give in evidence a judgment of Beale and Kealhofer against Barnes, and a fi. fa., issued thereon on the 4th day of May 1839, and returnable to November term 1839, which was returned, “Made.” To the admissibility of this testimony, the defendant objected, and the court sustained the objection; and it is this action of the county court which constitutes the first exception. The fieri facias, the return to which constitutes the cause of action in this case, was issued on the 19th day of December 1838, and returnable on the 4th Monday of March 1839.

An examination of the record will show that the fieri facias was not returnable at the time stated in the offer. It was issued the 4th day of May 1839, and made returnable on the 4th Monday of March thereafter. According to the case of O’Hara vs. Hammond, 2 Harris and Gill, 111, whenever the offer in its description of a paper proposed to be given in evidence differs from the paper, the paper itself must determine whether it be admissible. This being so, the writ offered in evidence was not returnable until a year after the fieri facias sued out by the plaintiff. It might very well be, that a person should have property in March 1840, sufficient to satisfy a writ, and yet, wholly without any in March 1839. The vicissitudes of life, and especially of that of men extensively engaged in business, make such testimony very unsafe data on which to predicate the conclusion sought to be arrived at in this case. The period is entirely too remote, and, therefore, we think the court did right in rejecting it.

The second exception is founded on the refusal of the court to allow the plaintiff to prove a conversation between George Kealhofer and his former partner, Ross Beale, in regard to an *251execution which they had caused to be issued against Barnes. It is not pretended the defendant was present at this conversation, but merely that his deceased partner told witness that he had communicated their wishes to the sheriff. To have admitted such testimony, would have been to disregard every rule of evidence.

The refusal of the court to reject several writs oí fieri facias, issued, some before, and others, on the same day with that sued out by the plaintiff, and which were either countermanded or returned nulla bona, forms the third exception. An examination of the original record shows that the writ issued at the instance of Beatty and Sanders, was sued out on the 13th day of December 1838, instead of the 28th day of December, as stated in the printed copy.

It is a general rule, that in all collateral inquiries, the return of the sheriff must be taken as correct, and this being so, there could scarcely be stronger evidence to show the insolvency, or at least the want of ostensible property, than the return of nulla bona to writs of fieri facias, immediately before and about the time of the period involved in the controversy.

The plaintiff proposed to prove what number of acres Barnes commonly put out and cultivated, and also, what was the habit of the farmers in the neighborhood, in regard to the number of acres appropriated to the growth of winter grain. The rejection of this testimony constitutes the fourth and fifth exceptions. It was impossible for the jury to draw any clear ideas from evidence so wholly irrelevant. The plaintiff did not propose to show that Barnes had in the ground winter grain, during the winter of 1838 and 1839; which was a fact quite susceptible of easy proof if it existed. The habits of the neighborhood could not enlighten the jury as to those of Barnes. We take it as no very unusual thing, that thriving and industrious farmers find themselves neighbors to those who are not so distinguished for those qualities.

The court erred in rejecting the testimony offered in the sixth and seventh bills of exception. One of the witnesses, *252George Beard, had proved that the distillery was carried on as usual, from December 1838 to March 1839, and that the hog pens were as full as usual, but he could not state the number of hogs nor the quantity of whiskey made. Specks testimony was offered to show what was the usual number of hogs, and the daily produce of the distillery. Standing alone, this evidence was properly rejected, but in connection with the other testimony in the cause, it tended to prove that Barnes had property from which the plaintiff’s debt could have been made, and should have gone to the jury. We concur with the court below in regard to the first, second, third, fourth and fifth exceptions, and differ from them in regard to the sixth and seventh.

Judgment reversed and procedendo awarded.