Lee v. Tinges

Ecclestoh, J., delivered the opinion of this court. After veidict the appellants filed a motion for a new trial, stating they did so, without “waiving their exceptions.” The court heard and considered the motion, but overruled it. The same day on which this decision was made, the appellants filed a motion in arresl of judgment, which, however, was subsequently withdrawn, without, having been acted upon by the court. The appellee insists, that this appeal should be dismissed, Because the reasons assigned why a new trial should be granted involved questions of law, which were presented in the bills- ²²⁶ of exceptions, or if not, which might have been presented in them.

The principie contended for is, that if a party asks for a new trial, relying upon matters of law, and after being considered by the court the application is refused, although he may not have been required to waive or abandon his exceptions, still he cannot have his case reviewed upon appeal; because such an application for a new trial, will, of necessity, be considered by the courts as a waiver of his bills of exceptions and right of appeal. In 6 How., 283 , United States vs. Hodge, et al., the Supreme court say, “The motion for a new trial was not a waiver of a writ of error. In some of the circuits, there is a rule of court to this effect. But effect could be given to that rule only by requiring a party to waive on the record a writ of error, before his motion for a new trial is heard.

In the greater part of the circuits no such rule exists. It does not appear to have been adopted in Louisiana.” In Mitchell vs. Mitchell, 11 G. & J., 389 , the county court refused to entertain a motion for a new trial, unless the party would abandon her exceptions, which being refused, the court declined to entertain the motion. After verdict in favor of the caveatees, in Townsend vs. Townsend, 9 Gill, 517 , the caveators moved the court to set aside the verdict and grant a new trial. Among the reasons assigned, the 4th alleged error in the court, for excluding from the jury proof of the declarations of Walter B. C. Worthington, one of the witnesses to the will.

The question as to the admissibility of this proof, was presented by the caveators’ bill of exceptions. The court overruled the motion. When the- case was under argument upon the appeal of 'the- caveators, the-counsel.forthe appellees contended, “That the motion for a new trial, and especially upon the ground covered by the bill of exceptions, was a waiver of said bill of exceptions.” In the opinion of the court nothing is said on this subject: but it is perfectly clear that they did not adopt the view of the appellees ;,for if they had the appeal must have been dismissed. Instead'of which the decision below was-reversed, ²²⁷ upon the question presented in the bill of exceptions.

Orre of the judges dissented from the decision of a majority of the court, in regard to the admissibility of the evidence, which had been rejected below, but as he makes no allusion to the exception having been waived, by the motion, we consider him as concurring with the other judges, in the propriety of treating the appeal as legally before them. The decisions on this matter of practice have not been entirely uniform: but the cases referred to we deem sufficient to warrant, the conclusion, that in Maryland, when the same questions are presented in the bill of exceptions, and in the application for a new trial, the court below have the right, and in general ought, to require the party to waive his exceptions, before they will entertain the motion. If, however, the motion is heard and decided, but it does not appear that the party was required to make such waiver, the appellate tribunal will nevertheless, entertain the appeal. See 9 Porter’s Rep., (Ala.,) 110, West vs. Cunningham.

The motion to dismiss is overruled. The two notes mentioned in the first exception, and offered in evidence by the plaintiff, were objected to by the garninishees, but the court refused to sustain the objection, and this refusal constitutes the first exception. At -the time of making the oath, for the purpose of obtaining the attachment, the plaintiff produced an account of sundry items of goods sold and delivered, as his claim, on which the alleged absconding debtor was indebted. The short note filed in the cause, is for goods sold and delivered; for money lent and advanced to, and paid, laid out and expended for the defendant; and for money had and received by the defendant for the use of the plaintiff.

Although the .witness Alnutt, in his examination-in-chief, stated the account was correct, yet, upon cross-examination, it appeared that he did not sell the goods, but as book-keeper he made out such account in his books from information derived from the other clerks. But upon further examination by the plaintiff, the witness “stated that he had been in the habit of obtaining from the ²²⁸ defendant his notes for previous purchases, and that he presented to him the account, as filed at different times, and soon after the dates set forth in the said account as of purchases, and that the defendant subsequently to such presentment, gave to witness the note following, which he also proved was signed by the defendant.” The note here alluded to, is the one for $498.40, dated the 13th March 1850, and payable in six months: which the witness says was for a portion of the account. From the testimony of this witness, it also appears the note for $241.61, dated the 13th of September 1850, and payable in one month, was subsequently enclosed in a letter to the plaintiff from the defendant. In the letter, the defendant offers an apology for not being able to comply with his engagements, and asks, as an act of kindness, that the plaintiff will accept the enclosed note, for the balance due on former note.

And the witness says, the note so enclosed was for the balance of the larger note of $498.40, then remaining unpaid. The objection urged against the admissibility of these notes is, that an account was produced before the magistrate, as the claim on which the debtor was indebted, and the notes not having been produced at that time, they cannot now be used as evidence, in support of the plaintiff’s claim; especially in the absence of other legal proof to establish the correctness of the account. It is admitted by the counsel for the appellants, and properly so, that if A., sells goods to B., which are regularly charged to him in the ordinary course of business, and subsequently a promissory note is given by B., for the amount of the claim, after the note falls due, A., may maintain an action upon the account notwithstanding the note. And it is also conceded, that if A. has a claim for money had and received for his use, by B., who gives a note for the same, the note will be sufficient evidence to sustain an action by A., upon the common count, for money had and received.

But it is said, although these principles apply to ordinary cases of actions in assumpsit, they are not applicable to attachments, ²²⁹ And many cases have been cited, for the purpose of showing how careful the courts have been to require a strict compliance with the provisions of our attachment laws: among them is that of Dawson vs. Brown, 12 G. & J., 53 . And it is supposed, this decision is quite sufficient to show that the notes objected to were improperly admitted in evidence. ' But we do not concur in this view of the matter. There the attachment was held to be erroneous, so far as related to the notes, because they were not produced with the affidavit. But it will be seen, that the objectionable items of the account consisted of the notes themselves, not charges for goods sold and delivered or for other matters, constituting an account, which, even if a note had been given for the same, would have been sufficient to support an action of assumpsit.

In reference to what the statute requires to be produced at the time of making the affidavit, (he court held that the creditor was not bound to produce before the justice, all the written evidence which he might have in his possession, and which might be used before the jury to establish the debt, and entitle him to a condemnation of the property attached. And among the examples intended to elucidate this proposition; and to show what kind of evidence need not be produced, the court gave the following: “So if an attachment be required on an open account, for goods sold and delivered, or money lent and advanced, and the creditor had this debtor’s written orders for every item charged in the account, their production before the judge or magistrate is uncalled for by the act of Assembly. It requires not the production of the testimony, qua testimony, by which the creditor’s claim is to be established, but the production of his cause of action, the account, bill, bond, note or instrument of writing, on which a declaration would be framed, as his cause of action, being in the language of the act of Assembly, ‘that by which the said debtor is so indebted.’ ” If in the case put by the court, the account would be a sufficient cause of action, on which to have an attachment, and at the trial the written orders might be used as evidence to sustain the claim ; why may not the account in this ²³⁰ case be sufficient to sustain the present attachment; and why may not the notes when taken in connection with the testimony of Alnutt and the letter of the defendant, be permitted to go to the jury as evidence, tending to prove an acknowledgment on the part of the defendant, of at least a portion of the account? It cannot be doubted that in an action of assumpsit, upon this account, the notes, under the circumstances disclosed in the record, would be proper for the consideration of the jury, as evidence of an acknowledgment by the defendant, that a portion of the account was correct.

And if this were to be so in assumpsit, we see no good reason why it should not be so in the present instance. This, in our opinion, is clearly within the principle established in Dawson vs. Brown. We do not understand the plaintiff as relying upon either note as his cause of action, or as evidence, per se, of the correctness of the account; but that they were offered in connection with the other proof as evidence of the defendant’s acknowledgment, that a portion of the account was correctly due. At all events they were admissible in that view, and as the particular object for which they were offered is not stated in the bill of exceptions, we cannot reverse the decision which admitted the proof.

This decision is said to be erroneous for a further reason, which is thus stated: (being the 2nd point of the appellants:) “The said evidence was likewise inadmissible, being contrary to the account filed with the attachment. The proof establishes, that $241.61 was due on the 13th of September 1850, and continued due until the attachment issued, there being no evidence of any other indebtedness at or between' those periods. The account shows the payment of $498.40, on October 5th, 1850, which was more than double the amount proven'to be then due, and of course showed an extinguishment of indebtedness prior to suit brought.” We do not see how we can sustain this point, even if the question presented by it is to be considered as properly before us. It is evidently a mere question of fact.

It assumes, the proof estab ²³¹ lishcs $241.61 to have been due on the 13th of September 1850, and continued due until the attachment issued, there being no evidence of any other indebtedness at or between those periods. And because the account shows the payment of $498.40 on 5th of October 1850, we are required to assume that this payment was an extinguishment of all indebtedness prior to suit brought. The language is, “showed an extinguishment of indebtedness prior to suit brought.” Which of course, means all' indebtedness; for otherwise it would avail nothing, in support of the position here relied upon. There are several' objections to the point.

One is, that it is inconsistent in its different parts. For if it be true, “the proof establishes that $241.61 was due on the 13th of September 1850, and continued due until the attachment issued it will be difficult to perceive how it can be true that the payment of $498.40 on 5th of October, showed an extinguishment of all indebtedness prior to suit brought, which was on the 21st of the same month. Moreover, we are not prepared to say, that this payment left no part of the account due at the date of the attachment, when the witness, Alnutt, has sworn that the portion of the account then due was $241.61. And this we understand as having been sworn to by him, with a knowledge that the credit of $498.40 was upon the account!

That he knew it, is at least a fair presumption,, because he stated, “that the account annexed to the