Wilson v. Ireland

| Md. | Dec 15, 1853

Le Grand, C. J.

delivered the opinion of this court.

This is an action of replevin, instituted by the appellant, in his capacity of administrator ad colligendum of Samuel Owens, deceased, against the appellee, to recover a negro slave alleged to belong to the estate of Owens. The defendant interposed several pleas, only the first of which, however, it is necessary for us to notice, which is a denial of the plaintiff having been appointed collector, &c., of Samuel Owens.

The plaintiff, to sustain the issue joined on this plea, gave in evidence the original letters ad colligendum, which are •without dale; and also the bond of the plaintiff, dated the 23rd day of February 1849, on which was endorsed, as appears from the certificate of the register of wills of Calvert county: “Sam’i B. Wilson, collector of Samuel Owens, to the State of Maryland, Bond filed the twenty-third day of February, eighteen hundred and forty-nine. Recorded in liber SSEL, No. 1, folio 33, and examined per Richard Mackall, Register.” He also gave in evidence the original minutes of the application of the plaintiff to the orphans court for the award of the letters to him, from which appeared, under date of Tuesday, February 20th, 1849, the following entry: “On application of captain Samuel B. Wilson, it is ordered by the court, that letters ad colligendum be granted to him upon the estate of Samuel Owens, late of Calvert county deceased. The court adjourned until the second Tuesday in March, being the 13th day.” In addition to the above, the plaintiff offered to prove by the register of wills of Calvert county orphans court, that the said court never caused any -written evidence of their approval of the bonds of executors, administrators or collectors to be entered on their minutes, or endorsed on the bond, or kept or retained in any other manner, but that the habit and usage of the court was, upon the tender of the bond to them, verbally to direct the register to accept and record the same, and that upon such direction, the register recorded the bond, and that where letters testamentary were ordered by the court and the bond was subsequently given in vacation, it was the invariable habit of the register of wills, at the next session of the court, to tender such bonds to the court for approval, upon which approval they were recorded, and not before. The plaintiff also proved the death of Samuel Owens to have taken place before the date of his bond as collector.

On this state of facts, on motion of the counsel of the defendant, the circuit court instructed the jury, that the proof was not legally sufficient for the plaintiff to maintain the issue joined upon the first plea.

In giving' this instruction we think the court erred. The case of Raborg vs. Hammond, 2 Harris and Gill, 42, is directly in point. It was there held — fin a case in which it was not only not denied, but conceded, letters of administration had been improperly granted — that in a suit instituted by the administrator, it is not competent for a court of law to go into an inquiry whether administration had been rightfully granted or not, and that in all cases in which letters have been granted improperly, application for their revocation ought to be made to the tribunal granting them, or an appeal prosecuted for a revision of its order in the premises. That decision is fortified by reasoning, which, in our judgment, renders it impregnable.

But, it is supposed, this case is somewhat different; and the difference in principle is stated to grow out of the fact, that here the right of the plaintiff to sue as collector is directly put in issue by a plea. This circumstance can make no difference, for, whether or not the question be raised by plea, the measure of proof is the same.

This action was instituted on the 13th of April 1849. The order directing the granting of letters ad colligendum was passed on the 20th of February 1849, and the bond of the plaintiff was dated and endorsed as of the 23rd of the same month and year.

As it does not appear the orphans court of Calvert county was in session on the 23rd of February 1849, nor that it ever fixed the penalty or approved of the bond, it is contended on behalf of the appellee, that under the 11th section of the 3rd sub-chapter of the act of 1778, chapter 101, the plaintiff was not, in point of fact, appointed collector. That section provides, that “before letters to collect shall be granted, the party shall give bond, with approved security, &c., in such •penalty as the court shall direct.”

All that it is important for the plaintiff to establish in this particular is, that he had been appointed and bonded before the institution of this action, and we think he has offered sufficient proof of both facts. The case of Winchester, Trustee of Williams, vs. Union Bank, and the case of Winchester, Trustee of Gooding, vs. Union Bank, 2 Gill and Johns., 73 and 79, but affirm the principle, that the trustee of an insolvent debtor is not invested with the functions of trustee, and cannot sue for, nor in any manner intermeddle with, the property of the insolvent until he has bonded.

The order appointing the plaintiff and the date of his bond are both prior in point of time to the institution of this action; and the cases are clear, that the signing, sealing and delivery of the bond, are prima facie evidence of acceptance and approval, and, to use the language of the court in the case of the Union Bank of Md. vs. Ridgely, 1 Harr. and Gill, 430, “we think the jury, in the absence of all other evidence respecting the execution of the bond, ought to have been permitted to infer, that it was duly executed and delivered, and accepted, which acceptance necessarily included the approbation of the” court, “or their satisfaction with the sureties, and is not necessary to be in writing.” The bond which the court were considering in that case was not attested, and was found deposited among the archives and valuable original papers and documents of the bank, in an iron chest in the banking house of the corporation. In the case before us, the bond of the plaintiff was found among the papers of, and in the office of, the register of wills. In that case, as in this, counsel for appellee pressed on the court, (2 H. & G., 396,) the argument, that it was only deeds, the face of which purported they were delivered on the day of their date, that it was held and presumed the delivery took place on the day they bore date, but the court held the argument unavailing. But in this case the bond purports on its face to have been signed, sealed and delivered, on the day it bears date.

Judgment reversed and procedendo awarded.