Mish v. Main

Roberts, J., delivered the opinion of the Court. This suit was brought by the appellant, as receiver of the Surbridge Manufacturing Company, to recover possession of a number of bicycles. The facts are sufficiently set out in the reporter’s statement and need not be again repeated. The record contains ■ nine exceptions, eight of which relate to the admissibility of the proof offered, and the ninth exception is taken to the granting by the Court of the appellee’s prayer, by which the case was taken from the jury.

It will not be necessary to examine in detail the various exceptions to the testimony offered, as most of them are closely analagous and can in most instances be considered together. The first exception is taken to the appellant’s offer to prove by a notary public the fact of his having protested for nonpayment the negotiable paper of the Surbridge Company, and to prove how much of said paper he had protested and when the same had been done. One of the questions in issue in the cause was the insolvency vel non of the company. It has been repeatedly held in this State, and by the Supreme Court of the United States, that a merchant or trader who is unable to pay his debts as they become due in the ordinary course of business, is insolvent, Castleberg v. Wheeler, 68 Md. 277 ; Toof v. Martin, 13 Wall. 40 ; and if insolvent, how can the fact be better established than by one who has direct information as to the protest for non-payment of the company’s negotiable paper.

At common law the notary was a competent witness to establish the fact of the protest for non-payment of such paper. Cookenderfer v. Preston, 4 How. (U. S.) 317; Johnson v. Harth, 2 Bail (S. C.) 183. There is nothing in the law of this State which affects the notary’s status as a witness, although it may have enlarged the scope of his special acts.

This proof the appellant should have been permitted to give. The second exception presents the same question already disposed of in considering the first exception, ánd in addition thereto the appellant offered to prove the facts set out in the statement of the reporter. ⁴⁴ In seeking to establish a right to the possession, of the bicycles in controversy, the appellant offers to prove not only that the company was hopelessly insolvent, but that the directors, and especially the appellee, had full knowledge of the exact financial status of the company, and yet, possessed of this information, the directors sold all of the property and effects of the company to Surbridge, after whom the company was named, and who was then a director in and president of the same, on the following terms of sale: Surbridge, the president and director of the concern, was to pay for the stock subscribed or held by the other directors at the rate of twenty per cent, of the par value of the same, by giving his personal notes, which were to be paid in bicycles, to be manufactured out of material bought by the company prior to such sale. That the bicycles manufactured by said Surbridge, as aforesaid, were delivered to the appellee and by him removed during the night-time fro'm the premises of the company, and are the same replevied in this case. It is scarcely necessary to discuss a question of this character, as it speaks for itself, and the proof offered should have been admitted.

We fail to see the importance of the third exception. It is quite immaterial, so far as we can perceive, as to how many hands were working for the company, and we