27 Md. 401 | Md. | 1867
delivered the opinion of this Court.
This appeal is taken from an order of the Court below, passed-- day of February, 1867, overruling a motion
At October Term, 1860, of the Circuit Court for Caroline County, a suit was instituted by the appellant Sisk, against the appellee in debt, for $5000, which was continued under rule narr. to March Term, 1861, when leave was granted to amend the writ by the narr., and narr. bond, and award were filed. At October Term, 1861, $1800 of this claim was entered for the use of Wm. M. A. Liden, Alcaid Dawson, Wm. S. Goslin, Willis Corkran, Abraham Y. Collins, and Daniel Sparklin, and $700 for the use of J. Edward Bird & Co., and case continued under rule plea. At March Term, 1862, motion was made for judgment for want of a plea. On the 13th of the same month the appellee, by his solicitor, John M. Robinson, filed a bill on the Equity side of the same Court, alleging that the award, the subject of the action, was obtained by the mistake or misconduct of the arbitrators, and the improper practices of the appellant Sisk, and praying an injunction to stay proceedings at law. Among other allegations of the complainant it is charged that the parties to the arbitration met before the arbitrators, and presented their respective accounts against each other, which were marked exhibit B. and C. respectively, the appellant Sisk’s amounting to $604.51, and the appellee’s amounting to $1072.07, which embraced all the matters in dispute between them ; but the complainant further charges that subsequently to the time and meeting aforesaid, and after they had left said arbitrators, the said Francis A. Sisk, loithout notice in any manner whatever to the complainant, and without Ms knowledge or con
The copy of the note referred to as exhibit D., is as follows :
“$2000. On demand and for the purchase money of the mill and mill site and premises, sold by me as t'ho property of John Layton, known as the Potter Mills, to be applied to the preference claims against said Layton, I promise to pay Erancis A. Sisk, Sheriff, the sum of two thousand dollars. As witness my hand and seal, this 27th day of May, 1856.
Thos. E. Garey, [Seal.]”
Exhibit E. consists of short copies of judgments in the Circuit Court for Caroline County, of several plaintiffs for the use of Thomas E. Garey, from March to October Term, 1854, the uses being entered at various times between 1854 and 1858. The award was dated on the 30th June, 1860, for $2318.90 to be paid by Garey to Sisk, including the principal and interest on the above note as a part of the debt, and the sum of $108.49, amount of judgment. of Mobray, use of Sisk, against Spence and Hubbard.
On the 9th July, 1860, the arbitrators certify that there is nothing to show that Garey is bound to pay the execution of Henry Mowbray vs. Spence and Hubbard, with which he was charged in making up the balance of the award; “that Garey claims to have off-sets against his note for $2000, for the purchase money of Potter’s or Layton’s Mills, and Sisk refuses to re-open the award already made ; and they further certify that as far as they are informed, Garey had no notice that the note would be presented in arbitration of their disputes concerning fees.” That the off-sets claimed by Garey; are the oldest
These arbitrators, it appears, were attorneys at law, who subsequently appeared for their respective clients in the action upon the award, having full notice of its character.
The complainant Garey claims to be the owner of the judgments referred to, and therefore entitled to be credited with their amount on the note. Admitting the terms of submission were broad enough to include this note within the matters to be arbitrated, a point which it is unnecessary now to decide, the allegations of the bill impute to the appellant Sisk, and the arbitrators, such misconduct, as if • established, is sufficient of itself to set aside the award.
In support of these allegations, the complainant exhibits with his bill, exhibits B., O., and D. The first of these purporting to be “Statement of Oases vs. Thomas F. Garey,” is followed with this certificate of the arbitrators:
“ We hereby certify, that the within is the only account filed by Francis A. Sisk in the presence of Thomas F. Garey, and the only one of which he, was cognizant at the time of the making the award between them.”
Geo. M. Russum, [Seal.]
J. Hopkins Takr, [Seal.]
It appears from the docket entries in the case of Garey vs. Sisk and others, that the defendants in the original cause were all summoned and their answers filed, but that of the appellant Sisk only appears. In that, he does not specifically deny'the allegation of the bill, that he filed without notice to the opposite party, claims which were not included in his first statement, nor does he deny the facts certified to by the arbitrators, but he emphatically denies there was any intent or purpose on his part, or that he did before the arbitrators) or at any other time
Fraud is sometimes a legal inference from the conduct of the parties, without regard to their intent. The principal fact, from which this deduction might he made, is not denied by the appellant in his answer to the original hill.
On the 6th December, 1866, the appellee filed a second hill of complaint, recapitulating the allegations contained in the first, and referring to its dismissal as follows:
“ That not until .after the November election of 1864, when John M. Robinson, Esq., his only solicitor, in the aforesaid injunction, restraining and prohibiting the prosecution of the aforesaid suit at law, against your orator, was elected Judge of the Circuit Court for Queen Anne and Kent Counties — the tenth Judicial Circuit of the State — and thus by the Constitution and laws of the State, disqualified from acting as your orator’s solicitor, or from practising law in the State, was any action taken toward prosecuting said suit.”
The appellant Sisk in his answer to the second bill denies this allegation, and exhibits the docket entries as follows:
Thomas F. Garey vs. Francis A. Sisk, J. Edward Bird, Joseph A. Bird, Alcaid Dawson, William M. A. Liden, William S. Goslin, Willis Corkran, Abraham Y. Collins, Daniel Sparklin.
Circuit Court for Caroline County.
March Term, 1865.
1862, March 18. Bill of Complaint and exhibits filed ; bond filed and approved; writ of injunction and subpa. issued as prayed; injunction returned, “all sumd.”
1863, Jany„ 19. Rule, answer.
“ Mareh 28. Issue, attachments to answer countermanded as to Bird and Goslin ; attachment issued.
“March 30th. Answer of J. E. & J. A. Bird filed.
“ July 20th. Rule on shff. to return attachment.
Attachment returned, “ all attached.”
“ Octo. 9. Answer of Wm. M. A. Liden, Alcaid Daw-’ son, William S. Goslin, Willis Corlcran, A. Y. Collins and Daniel Sparklin filed ; answer of F. A. Sisk filed.
1864, July 18th. Issue commn. to Jas. B. Steele,Esq., to take testimony; commn. issued 8 July, 1864.
“ Octo. 8. Note from J. F. Garey to F. A. Sisk, shff. filed; replication filed.
1865, Jany. 16th. Rule on complainant to employ new counsel.
“Maroh 29. Rule on commr. to return commn. by July term ; Rule issd. and retd. “ served.”
“July 11. Com’n and Commrs. return filed.
“ Sept. 4th. Off under the rule.
True copy, Test: — Josiah Jump, Clk.
The inquiry in all cases of this kind is, first, whether the party seeking the interposition of a Court of Equity, had an adequate defence at law, and secondly, whether he was deprived of the opportunity of making such defence, by fraud, surprise, or inevitable accident or mistake, withoqt apy default of his own. Essex vs. Berry, 2 Vert., 161 ; Warner vs. Conant, 24 Vert., 351 ; 2 Story’s Eq., sec. 887 ; 7 Gill, 189 ; 8 Gill, 433 ; 2 Md., 320 ; 1 Md. Ch., Dec. 182. If we apply these principles to the case as presented by the first or second bill and the answers thereto, it appears there was sufficient ground for .issuing and continuing the injunction as prayed.
In the absence of statutes which vary or control -the
The answer of the appellant to the second bill of complaint, like that to the first, does not deny the specific charge before referred to, but leaves it unanswered, except' by general denials of fraud or intention to practice fraud. With regard to the manner in which the first bill was stricken off, at July Term, 1865, he avers, it was by reason of the neglect and refusal of complainant to employ new counsel, pursuant to a rule laid on him and of which he had due and legal notice, and that judgment in favor of the appellant was taken at October, 1865, as by reference to the docket entries in said cases, marked exhibits No. 2 and 3, will appear. Exhibit No. 2 shows the rule to employ new counsel was laid 16th January, 1865, and the case was entered, “ Off under the rule September 4th,” but it does not show, that the rule was ever issued and served on the complainant. On the other hand, in the same case, when a rule was laid on the commissioners to return the commission, the entries show, “Rule issued and returned seryed.” The absence of these latter
With such averments remaining unanswered or not positively denied, we think the injunction originally issued should be continued until the final hearing, and the order appealed from should be affirmed.
Order affirmed with costs to the appellee.