Williams v. Banks

| Md. | Nov 13, 1862

Bartol, J..

delivered the opinion of this Court:

This case was before tho Court of Appeals on a former •occasion, and is reported in 11 Md., 199. it was then remanded under the Act of 1832, ch. 302, and in conformity with the requirements of that Act, the opinion of tho Court was pronounced on the several questions involved in that appeal, and presented by the record. By the terms of the Act, to which we have referred, the decision of the Court of Appeals thus pronounced, is made “conclusive” as to the points finally decided, and no error can be imputed to the Court below, if its subsequent proceedings have been in conformity with that decision. Thomas vs. Doub, 1 Md. Rep., 252, 325. Young vs. Frost, 1 Md. Rep., 377, 394.

This being the established law of the case, our first •duty, in disposing of the present appeal, is to ascertain what has been already finally decided.

An examination of the former decision, has satisfied us that the following points have been conclusively settled:

1st. That the deed from Hannah Eh Chase to Nathaniel Williams and Joseph 13. Williams, dated the 2nd day of August 1844, to impeach which the bill was filed, was not fraudulent in fact, but was fraudulent in law, under the Statute of 13th of Elizabeth, as against bona fide creditors without notice, upon debts which existed antecedent to the date of the deed, and, as to such, it ought to be set aside.

2nd. That tho following antecedent claims had been established, and were entitled to he paid from the property ¿conveyed by the deed, viz :

H. C. Elion’s note, dated 2nd July 1844, for $350.00

Mills’ “ “ 30th “ “ “ 300.00

Renwick’s “ “ “ “ “ “ 1,308.12

Banks’ note, dated 30tli July Í844, Exhibit

D. B. B., No. 1 or No. 5, 2,000.00

See 11 Md. Rep., 243.

The grounds upon which the Court proceeded, in its decision upon these claims, are not now open for examination, and therefore we cannot entertain the inquiry whether there was error, in declaring the claim of Elion to be proved, as has been alleged by the appellant. This conclusion, in our opinion, results from the provisions of the Act of 1832, and is in accordance with the uniform course of decisions in this State. It is unnecessary for us to express any opinion upon the question, whether it was competent for the appellants, after the cause was remanded, to interpose new objections, and offer new proof to impeach the claims passed upon by the Court of Appeals; or to decide how far the decision before pronounced would be binding, if by further pleading and additional evidence, the claims were presented in a new and changed aspect; because in the case before us, the claims of which we have spoken, stand now, as they stood on the former appeal, the proof not being in our opinion materially altered.

To the claim of Renwick, the plea of the statute of limitations has been made, for the first time, after the cause was remanded; but in any view of the question, that plea could not be considered, having been made too late. See 1 Bland, 85, note c. 2 Id., 42, 43.

For the reasons stated, we think there was no error in the decree below, in allowing the several claims Avhich Ave have before enumerated.

We now proceed to notice those parts of the decree of the Circuit Court, by which other and additional claims of the complainant, Banks, have been allowed. These consist of four notes, marked respectively “D. B. B., Nos. 1, 2, 3, 4,” filed since the cause Avas remanded; and one note marked “Exhibit No. 4,” which had before been filed, but Avas disallowed bjr this Court on .the former appeal, the same not then being proAred. (11 Md. Rep., 229.)

To the four notes first named, the appellants have interposed several objections:

1st. That they were ante-dated.

2nd. That they were obtained fraudulently by the complainant, Banks.

3rd. That they were obtained by him usuriously.

4th. That they are barred by the statute of limitations..

With reference to the first two of these objections, it is sufficient to say, that, in our opinion, they are not sustained by the proof in the cause. At the former trial in this Court, the same objections were made to the several claims then passed upon by the Court of Appeals, and it was ruled, after a full examination of the testimony, that there was not sufficient proof to establish the alleged ante-dating; (11 Md. Rep., 232;) or to show any knowledge or participation by the endorsees, in any “fraud or imposition or undue influence,” alleged to have been practiced upon Mrs. Chase by William Chase Barney, in obtaining the notos; (11 Md. Rep., 237, 238.) On these questions the proof before us is not materially altered from wbat it was on the former appeal, and we concur in the opinion then announced, on the effect of the evidence. In deciding upon these two objections, we have excluded from our consideration that part of the testimony of Mrs. Mary Barney which relates to conversations between herself and William Chase Barney, and. have also excluded the letters of William Chase Barney, filed with Mrs. Mary Barney’s testimony, under the remanded commission. The exceptions thereto by the appellees, being in our opinion well taken.

3. On the former appeal the appellants relied on the plea of usury, to the claim of Banks on the note marked (“Exhibit 1 or 5,”) and tbo Court said, (11 Md. Rep., 235, 236,) “that the affirmative of this charge, by the defendants, rests upon them, under the Act of 1845, and they have not sustained it by evidence, which can enable the Court to decide that hiss than the nominal amount of the note was paid for it, and how much less, so that under the 3rd section of the Act, the Court may ascertain the amount really due, and decree accordingly.”

These observations are equally applicable to the defence of usury now urged by the appellants, to the four notes of Banks, of which we are speaking. The onus imposed on the appellants, by the Act of 1835, ch. 352, still rests upon them. See Bandel vs. Isaac, 13 Md. Rep., 202.

And we are compelled to say that the evidence relied on by the appellants, does not gratify the requirements of the law. For although the inference from the answer of Banks to the 3rd interrogatory may fairly be drawn, that he obtained these notes for less than their nominal amount, yet there is nothing from which the Court can ascertain how much less was paid by him, and the onus of showing the amount really due was on the appellants.

Under these circumstances, we are of the opinion, that the objection of the appellants on the ground of usury has not been.sustained.

4th. In disposing of the objection on the ground of limitations, it is necessary for us to recur to the pleadings in the cause:

The bill is in its nature a creditor’s bill, filed originally by Banks and Stewart, and alleges “that Hannah Kitty 'Chase, was in her lifetime largely indebted unto your orators, Daniel B. Banks and John Stewart, as maker and endorser of certain promissory notes,” and then proceeds to name and describe one of those notes, which is exhibited with the bill, marked “Exhibit D. B. B., No. 1.” The respondents, Nathaniel and Joseph B. Williams, in their .answer, make defence against “any note or notes of hers,” held by the complainants or either of them.

By our construction of the allegations in the bill, and the answers, any promissory notes which were held by Banks at the time the bill was filed, are embraced within Its allegations. The proof in the cause shows that the lour notes filed by Banks under the remanded commission,, were all bold by him at the time the bill ,was filed: and as none of them wore then barred by limitations, this objection must, be overruled, and in our opiuion, the decree below ought to be affirmed so far as it allows those four claims.

We now pass to the consideration of the claim filed under the first commission, marked (Exhibit No. 4.) On the former appeal it was decided that this claim was without proof to sustain it, and it again comes before us for examination, upon the new and additional proof since offered. We have carefully considered that proof, and are of opinion that it has not been established, A brief reference to the testimony, on which the appellee relies, will show that this claim has been erroneously allowed in the decree below. The witness, Cockey, does not prove it, he speaks only of the four promissory notes, “D. B. B., Nos. 1, 2, 3, 4,” filed for the first time under the remanded commission. The witness, Bowen, in his first examination, speaks only of the same four notes, and in his second examination testifies only with regard to “Complainants’ Exhibit No. 3, and Complainants’ Exhibit Ko. 5,” filed under the first commission.

Banks’ answer to the third interrogatory, setting oat a list of the notes held by him at tbe time of filing bis bill, refers to this note, but does not establish it as genuine; nor does exhibit No. 5, filed under the remanded commission, and the proof of tbe same being in William Chase Barney’s handwriting, furnish any evidence of the genuineness of the note to which the assignment refers. In our opinion, the objections of the appellants to the admissibility in evidence of the transcript of proceedings in the Superior Court, iu the ease of “Berford vs. Kathaniel Williams and Joseph B. Williams, executors of Hannah XL Chase,” was well taken, and ought to be sustained. And we think there was error in the decree below, in allowing this claim, “Exhibit No. 4,”—and the decree in that respect ought to be reversed.

(Decided November 13th, 1862.)

We concur in the ruling of the Circuit Court, upon the •exceptions of the appellants, to the admissibility in evidence of that part of Banks’ answer to the 5th interrogatory, in which he speaks of the declarations made to him by his counsel, David Stewart, as to any agreement made with Williams. A decree will be signed in conformity with the foregoing opinion, affirming the decree below in part, and reversing it in part; and remanding the cause in order that this decree and the decree of the Circuit Court, so far as the same is affirmed, may be executed, and to afford the complainant, Banks, an opportunity of giving further proof of “Claim No. 4.”

Decree affirmed in part and reversed in part, and ccmse remanded.