30 Md. 262 | Md. | 1869
delivered the opinion of the Court.
The real estate of Henry Wineow, deceased, was sold under a decree passed by consent, on the 5th day of April, 1858, for payment of debts and distribution among the heirs-at-law. These appeals, which have been heard together, arise upon exceptions filed by Walsh, trustee of Daniel Wineow, an insolvent petitioner, and by John Wineow, one of the heirs-at-law, to certain claims allowed in the auditor’s report.
The objection to Blocher’s evidence, because it was not taken upon proper notice cannot be sustained. By the order of the Court, each party was allowed to take testimony upon giving one day’s notice. In this case the notice was served on the 28th, and the evidence taken on the 29th of December, 1864. Now it is true, that when a statute or rule of Court" requires notice to be given of a certain number of clear days, both the day on which the notice is served and the day of the proceeding, must be excluded. King vs. Justices of
It has also been held that a statute requiring fourteen days at least, means fourteen clear days, and thesame rule must be adopted. The Queen vs. The Justices of Shropshire, 8 Adol. & Ellis, 173, (35 Eng. Com. Law Rep., 367,) and the ease of Oliver vs. Towns, 1 Texas, relied on by the appellees.
But we take the law to be well settled, however, in matters of practice, where any particular number of days not expressed to be dear days, is prescribed, the rule in regard to the computation of time, is not to exclude both the day on which the notice is served, and the day on which the act is to be performed, but to exclude the one and include the other. 30 Eng. Com. Law Rep., 380; Hoffman vs. Diel, 5 Johns., 232; The King vs. The Justices of Cumberland, 4 Nev. & Man., 378, and 1 Robinson’s Prac., 431. A party by this rule may not in fact receive one whole day’s notice, that -is, twenty four hours, but it must be borne in mind that in legal contemplation, there are no fractions of a day, except in certain cases of priorities, where the fiction is made to give place to exact truth.
It was also insisted that Walsh, as trustee, had no right to pay the judgment until it was ascertained that the other parties were insolvent. To this we do not assent. He was a trustee in insolvency, and it was the duty of parties having liens to file the same. If the claim were filed and allowed in the audit, and no exception taken by the creditors or parties interested in the fund, it was the duty of the trustee to pay it. The creditors, say the Court in Salmon, Trustee of Brown vs. Pierson, 8 Md., 298, may litigate inter sese, but the law does not impose this duty upon the trustee. Being satisfied by the testimony of Devecmon, that the judgment was paid by Walsh, as trustee of Daniel Wineow, the surety, the auditor ought to have allowed the trustee two-thirds of the amount due on the Hilleary judgment. The exception by Walsh to the allowance of only one-tliird was well taken, and the Court erred in overruling the same.
We come now to the exceptions taken by John Wineow, and the first ■ is to the claim of William A. Withers, assignee of Daniel Bloeher, assignee of Hiram B. Wolfe, for $527.rV¡r, with interest from April 16th, 1862. This claim purports to be a balance due by Henry Wineow, to Wolfe, for the purchase of real-estate, and assigned by Wolfe, to Bloeher. The account is dated on the 16th day of April, 1862, and was not filed until September, 1865, and was, consequently, barred by limitations. But it is claimed to be a vendor’s lien, and without the operation of the statute. It is a sufficient answer to say, that in making the assignment of the account, Wolfe
The second exception, is to the claim of Abner Ravens-oraft, assignee of Daniel Blocher, for $530, and dated October, 1851. It does not appear to have been filed until 1862. Mr. Cordon says he made out the account and prepared a petition at the time he prepared the petition of Blocher, which was on the 19th of September, 1855, but he does not say the account was filed. On the contrary, it appears to have been left with Mr. Ilebb, a commissioner, who says that the testimony of Elizabeth Blocher was taken by him in 1857 or ’58, for the purpose of proving an account of Daniel Blocher vs. Henry Wineow—that witness handed him a book showing a balance due by Wineow, but that by some means the evidence was lost. Now, at whatever time this account may have been made out, it does not appear from the record to have been filed until 1862, at which time it was barred by the statute of limitations. It ought not therefore to have been allowed.
The third exception, is to the judgment of Kemp, Buckey & Co. It is insisted that the objections to this claim cannot be considered in this Court, inasmuch as no appeal was taken from the order of the Court below, by which it was allowed. In this view, wc do not concur. Exceptions were filed to this judgment, and were considered and passed npon by the Court. The appeal therefore of Wineow, from the order ratifying the final audit, brings up for review all previous orders and decrees passed in the cause. Dugan, et al. vs. Gittings, et al. 3 Gill, 138. We do not agree, however, with the exceptant, that if the judgment were revived against Henry Wineow, as terre-tenant, it ought not to be allowed unless upon proof of the Insolvency of the principal, or that there are no other ter re-tenants against whom it could he revived. It is true,
For the reasons herein stated the order of the Court passed ' on the 13th Eeb., 1865, ratifying the fifth report of the auditor must be reversed, and all previous orders inconsistent with the views herein expressed, and the cause remanded, with directions to the auditor to state an account in conformity with the opinion of the Court. Leave will be given to take additional proof in regard to the judgment of Kemp, Buckey & Co.
Orders reversed" and cause remanded.