Jenkins v. Middleton

Bryan, J., delivered the opinion of the Court. On the fourth day of November, 1886, Middleton and Williams, trading under the firm name of J. I. Middleton & Co., made a deed of trust to Skip with Wilmer for the benefit of their creditors. On the petition of the trustee, the Circuit Court of Baltimore City took jurisdiction of the trust, and ordered that the trustee publish the usual notice to creditors to prove their claims. A claim for eleven thousand four hundred and eighty-one dollars and twenty-two cents, was filed in behalf of Mrs. Middleton, the wife of one of the grantors, verified by the oath of her husband.

Exceptions were filed by Thomas P. Jenkins, a creditor of the firm; but they were overruled, and Mrs. Middleton’s claim was admitted to receive a dividend from the assets of the firm. An appeal was taken by the exceptant. Mr. and Mrs. Middleton were both examined as witnesses. In his testimony, Middleton speaks of a marriage settlement on his wife; but as it was not produce^, nor were its contents proved in the mode required by law, we cannot take it into consideration.

The law, however, effectually secures a married woman’s property to her, without any marriage settlement. It appears that a portion of Mrs. Middleton’s property consisted of coupon bonds, certificates of stock of banks and railroads, mortgages and city stock, and that these securities were received by Mr. Middleton and were managed by him as he saw fit ⁵⁴³ for her benefit. There is no doubt that the money now claimed from the firm was advanced to it by Middleton out of bis wife’s funds. There is as little doubt from the evidence that Mrs. Middleton fully entrusted her business to her husband’s management, and that she never, at any time, objected to anything that he saw fit to do with respect to her property.

She says in answer to the tenth interrogatory by the exceptant: “I should not have been' willing for him to have used them for the firm, hut should not have been unwilling for him to have used them for himself individually.” She testified that she learned for the first time in the autumn of 1886, just at the time that her husband became unfortunate, that he had used the proceeds of her bonds in the firm’s business. The thirteenth interrogatory is in these words: “Were you then willing for Mr. Middleton to have done what he did in so using your bonds in the business of his firm?” Her answer is: “I never gave it a thought; when a thing is done it cannot be undone.” The fourteenth interrogatory is as follows : “Did you then think that Mr. Middleton in doing this, had acted wrongfully, or was guilty of a breach of trust and confidence towards you in so using your bonds ? ” The record states that “under advice of counsel, the witness declines to answer any part of the question.” On the demand of the exceptant, the question was certified to the Court for its decision whether the question should