Blackburn v. Beall

Bowie, C. J., delivered the opinion of this Court: The appellant’s counsel assume in their brief, that the Act of 1856, ch. 112, was in force when the sci. fa. in this case was issued. Upon reference to the record it appears, the sci. fa. was tested on the 4th of February 1860, and issued on the 10th of March ensuing; the Code went into operation on the 12th of January preceding. It is therefore to the provisions of the latter we are to look, as far as the questions of pleading are affected by the statute law of this State. The principles of the Code operating on the pleadings in this case, will be found in Art. 75, secs. 3, 6 and 7.

By these “any plea necessary to form a legal defence shall be sufficient without reference to mere form.” “No special demurrer shall be allowed in any civil case, and no general demurrer for a mere informal statement of a cause of action or defence.” The defendant availing himself of the liberal spirit of these clauses, has presented the facts which he deemed proper for defence without technical form, in five pleas; three, in the nature of pleas of release; two, in the nature of pleas of payment or satisfaction,. Belease and payment, ²³⁰ according to all' the authorities, are good pleas to a scire facias. If the facts specially pleaded by the defendant did not bring these pleas within the legal description of these respective classes, the plaintiff should have demurred, by replying and joining issue, he admits their sufficiency in law. Where there is any imperfection or omission whatever in any pleading, which would be a fatal objection on demurrer. yet if the issue joined be such as necessarily required on the trial proof of the facts so imperfectly stated or omitted, such imperfection or omission shall be cured by the verdict.

Sec. 9, Art. 75, Code. Of the six hills of exceptions contained in the record, the first and second are taken to the admission of evidence offered Icy the defendant. The third and sixth to the exclusion of evidence offered by the plaintiff. The fourth, to the refusal of the Court to grant the 5th, 6th, 7th and 8th prayers of the plaintiff, and to the modification of the 2nd, 3rd and 4th prayers of the plaintiff at the defendant’s instance.

The fifth exception is taken to the granting of the 2nd and 3rd prayers of the defendant. The evidence which forms the subject of the appellant's first bill of exception, was a paper purporting to be a receipt or release, accompanied at the time of its production, by a declaration of the defendant’s counsel, that they intended, in connection with the paper, to show by the record that William Z. Beall, the defendant’s testator, was a surety for Charles Digges, in the original single bill on which the judgment referred to in the paper, was obtained. This declaration of the counsel, in relation to this and other evidence, it is said was not redeemed, and it was the duty of the Court, ex officio, at the close of the trial to direct the jury to disregard such testimony. The duty of the Court, in such cases, is correctly laid down in Atwell vs. Miller, &c., 6 Md. Rep., 26 .

The assurance that this evidence would be followed up by proof of other circumstances and facts material and competent, with which it would ²³¹ have an important connection, rendered its admission proper. If, however, it should turn out that this assurance was not fulfilled, it would bo the duty of the Court, upon application of the counsel, to direct the jury not to regard it. It is objected, that the paper excepted to was not admissible as a release, not being under seal, or competent evidence under the 1st, 2nd and 5th pleas, all of which aver a release and discharge of Win, Z. Beall, whose death anterior to the release, would make it inadmissible as a release to his executor. This objection assumes that pleas of release technically speaking, were pleaded and rests on the variance between the allegata and probata.

The pleas referred to are not, technically speaking, pleas of release. They are special pleas to the scire facias shewing cause why execution should not go. If they were not sufficient in law, the plaintiff, as before suggested, should have demurred. Such defences were held good on demurrer by tbis Court in the case of Booth vs. Campbell, trustee of Harper, 15 Md. Rep., 574 ; where it is said a release or discharge of one of the defendants would operate as a discharge of all.

This principle is so well settled as to require no authorities, to be cited in its support. If the matters alleged in the plea are sufficient in law to operate as a discharge of E. B. Fitzgerald from all liability upon the judgment, the inevitable consequence is, that it cannot be enforced against the appellant, &e. In that case it was held that a pica of accord and satisfaction was a valid defence to the scire facias. It is further objected, that the paper excepted to, was not admissible under the 3rd and 4th pleas.

These are informal pleas of payment. The third avers, “ that after the said judgments recited in the plea last aforesaid were rendered, and before the issuing of the seire facias in this case, the said Charles Digges, the principal alleged in the said mentioned debt, paid and satisfied the plaintiff’s said judgments, by the rendition of certain services and other ²³² valuable considerations, before that time received by the said David Crawfurd from the said Charles Digges.” The fourth avers, “ that before the issuing of the scire facias in this case, the said Charles Digges, the principal obligor in the said judgments mentioned, paid and discharged the plaintiff’s claim on said judgment recited in the scire facias aforesaid. The gist of the plea of payment under the statute of Anne, ch. 14, is that the defendant paid the plaintiff the sum of- in satisfaction and discharge of the judgment aforesaid, which the plaintiff received and accepted in full satisfaction and discharge. The testimony offered by the defendant would have been admissible under' the old rules of pleading; if so, it must be under the Code, the object of which was to prevent a too technical nicety in pleading and practice.

The evidence which forms the subject of the seóond exception, is the records, docket entries, &c., in the case of David Crawfurd vs. Charles Digges, Norah Digges, and the late Wm. Z. Beall. At the time of offering these,.the defendant’s counsel stated that he intended to show by them, that the judgment recited in the scire facias and the judgment against Charles and Norah Digges, were recovered for the same debt on a joint and several single bill, to the said David Crawfurd, signed by the said Charles arid Norah Digges, and the defendant’s testator. The record shows the original cause of action was a joint and several single bill for §2000, executed by the parties above named, who were sued jointly; that a judgment was confessed by the two first named, and the death of the third suggested, after which a separate action was docketed against his executor, the defendant, now appellee, and judgment rendered against him on the same nar. and single bill, which were' filed in the original cause against Charles and Norah Digges and William Z. Eeall.

The appellant’s objection is, that as the pleas and the paper offered in evidence, described or referred only to a judg ²³³ ment of Crawfurd against Wm. Z. Beall, the record of a judgment against Washington Beall, Exr. of Wm., did not sustain the pleas, or agree with the release pleaded, whether the judgment referred to in the receipt of David Crawfurd arid purporting to be thereby released, was the’ judgment described in the record and proceedings offered’ in evidence, arid rendered for the same debt or cause of action as the judgment on which the sci. fa. then pending was issued, was a question for the jury, the testimony offered tended to establish their identity, and was therefore riuinissible. The third exception is taken to the refusal of the Coffri! to' admit evidence of certain characteristics of the plaintiff’s intestate, on cross-examination of a witness of the deféridant, connected with a declaration by the plaintiff’s counsel, that lie would show that shortly before tbe date of the' supposed paper writing, purporting to be a receipt, the’ plaintiff’s intestate was pressing tbe collection of tbe said judgment. This evidence was offered for tbe purpose of impeaching tbe genuineness of the signature of the plaintiff’s intestate, and of showing the same was a forgery.

Great as is the latitude allowed on cross-examinations, it does not extend so far as to make testimony, otherwise incompetent, admissible, unless the opposite party by bis course of examination has warranted it. The bill of exceptions, in this instance, does not show that any evidence' had been offered by the defendant, relative to the charac¿eristics or conduct of tbe plaintiff by tbe witness under examination, or any other witness, to justify the introduction of evidence of the character or conduct of the plaintiff’s intestate. Independently of which, the evidence proposed conflicted with a cardinal maxim of the law, which prohibits a party’s acts or declarations to bo given in evidence in his own cause. The intimation, that the object of the testimony was to establish forgery or fraud, does not fake it out of the reason of the rule, on the contrary, th& ²³⁴ higher the crime or deeper the fraud, sought to be established, the more stringently the rules of evidence should be enforced.

The authorities which sanction the admission of facts however slight, which tend to prove the issue of fraud, contemplate that the facts should proceed from disinterested and competent sources, and be proved by witnesses above all legal exception. The fourth exception is taken to the rejection of certain enumerated prayers, and the granting of others with a modification, upon which the point is raised, “that the appellants had a right to have the opinion of the Oeurt below upon the proposition submitted by him as submitted, and to have the decision upon those propositions reviewed by this Court.” In support of which they rely upon Whiteford vs. Burckmyer & Adams, 1 Gill, 127. Birney vs. W. & N. Y. Tel. Co., 18 Md. Rep., 341 .

The proposition for which these cases are cited, is not of universal and indiscriminate application, but is to be understood as applied to the facts then before the Court in the first named case. The subject was the notice necessary, to enable an endorsee to recover against an endorser of a bill of exchange, drawn on a house in Charleston by a house in Baltimore, and protested for non-acceptance. The defendant’s prayer correctly -stated the law of the case upon the whole evidence. The plaintiff offered a qualification, speaking of which, the