Dowler v. Cushwa

Bowie, C. J.,’ delivered the opinion of this Court. The appellee, as trustee under the insolvent laws, sued the appellant in trover for the conversion of certain goods and chattels, including wheat and oats and other perishable articles. The nar. contained two counts: in the first, the conversion was laid before the appellee’s appointment as trustee, but after the petition; in the second, the conversion was charged to have been after the appellee’s appointment. The appellant pleaded not guilty^ on -which issue was joined.

Five bills of exceptions were taken by the appellant — four to the rulings of the Court excluding or admitting testimony, and the fifth to the rejection of a series of prayers renewing in another form the objection to the evidence raised in the third exception. FTo point is presented on the first bill of exceptions by the appellant in his brief, and it is therefore unnecessary to notice it. The second bill of exceptions was taken to the sufficiency of evidence offered by the plaintiff and admitted by the Court below as secondary evidence of the execution, approval, and delivery of the bond of the plaintiff as trustee, and of the contents of this bond. The circumstances given in evidence, raised the presumption that the bond, if it required a stamp, had been executed and stamped, and diligent search having been made by the deputy clerk in the clerk’s office without finding the same, parol evidence was properly admitted of its contents.

The fact that the bond has since been found without a stamp, does not in any manner impeach the propriety of the admission of parol proof, but shows only the fallibility of the best devised maxims of presumptive evidence. The third and fifth bills of exception relate to the necessity of a revenue stamp, to the legal validity of the bond of the trustee in insolvency, and, consequently, to his capacity to sue, the appellant insisting the bond in ³⁶⁴ question is not within the exception “ of bonds required in legal proceedings” under the Act of Congress of the 1st June, 1862. In whatsoever view vra- regard these exceptions, we cannot find any ground for reversing the action of the Court upon them. If, as interpreted by the Court below, the bond is within the exception referred to, the ruling was right; if not, the affixing to a paper, setting forth the loss, &c., of the bond, during the trial, with the consent of the Court, the requisite revenue stamp, and cancelling it as the law required, and then filing said paper among the insolvent papers, where the bond should have been, was a substantial compliance with the provisions of the Acts of Congress, and gave the bond validity “ ab initio.” The evidence embraced in the fourth hill of exceptions was offered to prove that Springer, the insolvent, was, prior to his application for the benefit of the insolvent laws, indebted to the defendant,'who was also liable as surety for him to a large amount, and that after the execution of the hill of sale, and before his application, all the property mentioned in the hill of sale and sued for by the plaintiff, was actually delivered to the defendant, to be held by him as security for the indebtedness of the insolvent to the defendant, and his liability as surety, and that before, and at the time of the insolvent’s application, the defendant was in possession of the property, exercising control over the same, by virtue of the said delivery.

This testimony established the relation of bailor and bailee between the insolvent and defendant, whose rights as such bailee were necessarily involved in the issue joined in the cause. The liability of a defendant receiving property under such circumstances is modified by law. He is not absolutely responsible for its value. “ If the pawn be lost by casualty or unavoidable accident, or superior force, or ³⁶⁵ perishes from intrinsic defect or infirmity, the pawnee is not answerable, if the loss from such causes be duly made to appear, and no act was done or omitted to be done inconsistent with the pawnee’s duty, for he was only bound to bestow ordinary care and diligence. 2d Kent’s Com., 579. “ The pawnee may also sell without judicial process upon giving reasonable notice to the debtor to redeem. Ibid, 583.

The pledge covers not only the debt, but the interest upon it and all necessary expenses that may have attended the possession of the pledge, and the lien may, by agreement, be created to extend to subsequent advances. The appellee relying upon certain general expressions of this Court, in the case of Alexander vs. Ghiselin, 5 Gill, 178 , and others cited by Chancellor Johnson, in 3 Md. Ch. Dec., 508, resists the admission of the evidence as incompetent for the purpose of showing a right to the possession of the property. The language used in those cases is to be construed in connection with the object of the suits and the condition of the property.

In both, the property existed in specie, and the contest was chiefly about the distribution of the proceeds when sold; the right to make the sale was incidentally, but necessarily involved. These cases should not be stretched beyond their proper bounds to control others dissimilar in