Mitchell v. Williamson

9 Gill 71 | Md. | 1850

Chambers, J.,

delivered the opinion of this court.

It has been very correctly said by the appellants’ counsel, that the confused state of the record in this case, makes it very difficult to ascertain what are the questions properly before the court.

We will express an opinion on such points as we suppose, after an examination of the record, and a consideration of the argument, may be properly regarded before us.

The motion to arrest the judgment has been argued on two grounds : first, that in such a case as this, where a suit is instituted against an executor, who dies, pendente lite, after nar filed, when the administrator d. h. n., c. t. a. is made party, a new nar is necessary. The act of 1785, chap. 80, authorises the court to order new pleadings when they deem it necessary, in cases where representatives are made parties; but it is by no means required, in all eases, and in this would have been perfectly useless.

The second ground is, that the court gave judgment on demurrer, to one of the pleas, for plaintiff, which was afterwards stricken out; and that no further action was had in reference to the plea. This is a mistake on the part of the counsel, for the record shows there was a replication to that plea, and it further shows, that afterwards the defendant had leave to amend his pleadings, and plead anew to the nar, and of course all the previous pleas of defendant, and the replications thereto were withdrawn. Indeed, one cause of the confusion prevailing in this record arises from the repetition, time after time, of the same pleas after applications to amend and plead de novo, which application was made three several times. When, under leave to plead de novo, new pleas are filed, those before in a cause are, of course, withdrawn.

The first exception was taken to the refusal of the court to instruct the jury, that the evidence offered tended to prove a debt of $5000, to be due from J. B. Mitchell’s estate. We do not perceive that the matter alleged in the plea stating that fact, proved any legal defence or a bar to the action. The plaintiff however had taken issue in fact upon that plea, and so far as the evidence offered went, it was precisely in conformity to the allegations of the plea, and so far calculated to prove it. When a party takes issue in fact upon an allegation not constituting a legal bar to his action, he cannot successfully ask the court to rule out testimony, if it be in proof of such allegation. ..The devise of Francis J. Mitchell to ./. D. Mitchell of a large real estate, and the direction that J. D. Mitchell should pay his sister $5000, certainly created a debt. It has been said this court decided it was a lien on the estate devised to J. D. Mitchell, and lost or merged by the fact that the sister before the payment of the money, became entitled by inheritance from J. D. Mitchell to the land charged, 2 Gill 230. But it must be remembered (hat, although by the will it appears to have been a charge upon the real estate devised, it was not for that reason the less a debt due by ./. D. Mitchell, and the facts which induced this court to say the debt merged, were not in this cause replied by plaintiff in answer to the plea. nor given in evidence to take away the force of the proof offered by defendant. We can only regard the case made in the plea and proof, are as the latter was in conformity to the plea, we must say the court should have admitted it. The question raised by the second exception seems to be, whether the defendant could read to the jury the letter of attorney from Juliana Williamson, one of the plaintiffs, to Charles A. Williamson, authorising him to execute the release, for her proportion of the debt due from David Williamson, and the release executed pursuant to said letter of attorney, the due execution of each of these papers having been first proved. To ascertain the propriety of reading these papers to the jury, it is necessary to ascertain whether they were relevant to the issue framed. The appellee’s counsel has urged that the release related to another debt, but it will be found that it is so set forth in the plea on which issue is taken. It is also objected that its legal effect is not to discharge the debt for which the action is brought; but if that is the case, the proper course would have been to demur to the plea, and not to deuy the allegations. We do not intend to intimate that the facts pleaded amount to a legal bar, or that if a release of the debt sued for was claimed, the plea correctly brings that question before the court. A plea should not set forth the evidence, and deduce argumentatively therefrom a legal conclusion, but if the particular circumstances constituting in law a release or other matter of defence, are thus alleged, and (he adverse party takes issue on these allegations, he cannot require the court to rule out testimony which goes to prove the particular allegations in the plea.

The third exception was taken to the refusal of the court to admit a copy of the docket entries from the clerk of Harford county. There is nothing in this case to exempt the party who desired to offer proof of the character and nature of the judgment in Harford county, from producing the usual proof, a full copy of the record. The act of 1826, ch. 247, authorises the clerk to make up his full record from his docket entries, and minutes, instead of resorting to the record or transcript, which before that act was required to be made of every judgment, but it does not dispense with the necessity of a full re. cord as evidence of a judgment, in any case in which, before that act, a full record was necessary. The opinion of the court below is therefore affirmed on the third, and reversed on the first and second exceptions.

JUDGMENT REVERSED, AND PROCEDENDO.