Young v. Mackall

Le Grand, C. J. delivered the opinion of this court. Under the proceedings for partition in this case, the real estate of Thomas Mackall was sold, and claims were filed by •various parties against the proceeds. The claims now before us for adjudication, are those designated in the auditor’s account as Nos. 4, 5, 6 and 45. We shall treat of them in the order in which we have referred to them.

As to Claim No. 4. This claim is founded on a sealed bill of the deceased, Thomas Mackall, dated 22nd March, 1833, payable two years after date. It became payable 22nd March 1835, and was filed on the 4th of November 1847. To this claim two objections are interposed. 1st that it is not proved; and 2nd, that it is barred by the statute of limitations.

The second exception, we think, is well taken, and therefore it might be conceded without claimant’s deriving any benefit from the concession that it has been fully proved. The debt was due 22nd March 1835, and the claim was not filed until the 4th day of November 1847, and owing to the lapse of time, under the act of Assembly could not be pleaded or form the foundatition of a claim. To take the claim without the statute of limitations, the declarations of Thomas Mackall, as testified to by George Denton, are relied upon. He proves that he heard Mackall say he owed his sister money.

There is something indefinite in this ; but were it explicit and to the effect that the. deceased had expressly promised to pay the amount, it would not be sufficient to revive the remedy on ³⁶⁷ the bond. Its only influence would be to enable the party to I maintain an action of assumpsit on the new promise, and l enable him to give the bond in evidence as a considerationJ for the promise. The case of Lamar vs. Marro, 10 Gill & Johnson, 50, establishes that it was not the object of the legislature in passing the statute of limitations of 1775, chap. 23, to prohibit, in all cases, the giving in evidence of a bill or bond where it might be more than twelve years standing, or in any case where it was not itself the foundation of the action; and that where an express promise is proved, to pay the balance, which might appear to be due upon a single bill, the bill itself, though over twelve years standing, may be offered in evidence, as furnishing the inducement to, or legal basis of, the promise. In the case before us the statute is pleaded by Louis Mackall, and the bond and not the new promise is the foundation of the claim.

Such a case is directly within the operation of the act; we therefore concur in opinion with the chancellor, that even were it conceded ex gratia, that it had been proved, it is barred by limitations. JLs to Claim No. 5. This is founded upon the copy of a single bill, the original of which is alleged to be lost, executed by Thomas Mackall, in favor of his sister Anne R. G. Mackall, for $705.65, dated the 15th of July 1837, payable in three years. To support the claim, reliance was had upon the certificate of Thomas Mitchell, for William Hance, clerk of Calvert county court, certifying, that on the 15th day of July 1837, Thomas Mackall deposited in the clerk’s office a note of that date drawn by him in favor of his sister Anne R. G. Mackall, for the sum of $705.65, payable three years after date, and the deposition of A. R. Sollers, clerk of Calvert county court, taken before a justice of the peace, stating that he had caused diligent search to be made for the original without avail.

Full proof having been demanded, the exception to the sufficiency of the testimony to support this claim, we are of opinion is well founded. The certificate of Mitchell is not ³⁶⁸ under oath, and, like that of Mr. Sollers, is wholly ex-parte. This being so, there is no evidence competent to establish the factum, of the existence, at any time, of the bill alleged to have been lost. Until such proof be furnished, secondary evidence of its contents is wholly inadmissible. • As to Claim No. 6.

This is an open account against Thomas Mackall, for the hire of negroes, from January 1st 1834, to January 1st 1837. Three years barred the remedy on this claim. The statute being pleaded and rfo evidence having been offered to revive the remedy, it is consequently unsustained, and must'be rejected so far as exceptant is concerned. In thus disposing of claims Nos. 4, 5 and 6, we of course hold that the depositions taken in their support, as well as in that of claim No. 45, are inadmissible.

That of Dr. Parker, was taken without notice to' the other parly, and those of Denton and Sommerville, do not appear to have been taken at the house of John Sommerville, as required by the notice. It is said, however, by the counsel for the claimants, that this is not necessary. We do not so understand the decisions. In the case of Collins' Lessee, vs. Elliott, 1 Har. & Johnson, 1, the general court expressly decided, “that it ought to appear by the depositions themselves that they were taken agreeably to notice, both as to place and time, or they cannot be received as evidence, and that proof could not be admitted to show that they were in fact taken according to noticeand this decision of the general court was affirmed by that of the Court of Appeals.

But, it is supposed', the decision in the case of Calvert vs. Cox, 1 Gill, 95 , dispenses with the necessity of a compliance with the terms of the notice appearing on the face of the depositions. It is true that in that case the court held, it sufficiently appeared the commission had been executed at the time and place mentioned in the notice, although the time of d.ay when- the testimony was taken was not set out in the return of the commissioners, the place and day of the month only being mentioned. Yet, it is clearly to be inferred from the language of the court that they did consider it necessary, in a case like the one now before ³⁶⁹ us, that the place and day designated in the notice should appear on the face of the return to have been complied with. In that case it was objected that the testimony was inadmissible, because the commission had been executed in Virginia, where, it was contended, the commissioners had no authority to act; and in support of the objection the cases of Boudereau, et al., vs. Montgomery, et al., 4 Wash., C. C. R., 186, and Lessee of Rhoades and Snyder, vs. Selin, et al., 4 Wash., C. C. R., 715, were relied upon.

But our Court of Appeals held these cases not to be analogous to the one they were considering, because in those cases, by the terms of the commissions they were to be executed at designated places, and having been executed elsewhere, they were suppressed by the court. In the case of Calvert vs. Cox, the commission designated no place, but confided that matter to the sound discretion of the commissioners. In that, as in this case, the notice designated the place, and although the court there held it to be a sufficient compliance with the terms of the notice, to state on the face of the return the place and day on which the evidence was taken, they in no manner intimate the absence of such a statement, in regard to either of these facts, would not have been fatal to the admissibility of the evidence. So far from giving such intimation, it is plainly inferrible from their language, that it was their opinion such facts should appear on the face of the return.

And we hold that where the commission is silent, as to the place and time, where and when it is to be executed, in these particulars, the notice is to govern, and that it is just as requisite the return should show a compliance with the terms of the notice, as to place and day, as though they had been designated in the commission. The reason is the same in both cases. It is, however, objected, that under the act of 1832, chap. 302, the evidence is admissible, because there has been no sufficient exception to it. The exception to the testimony is, that it was taken irregulaily and without due notice.

The alleged irregularity consists in the fact, that it does not appeur to have been taken at the place designated in the notice. ³⁷⁰ The act of 1832, chapter 302, does not require an exception to the want or insufficiency of evidence, but merely to its inadmissibility. It does not, however, impose upon the ex-ceptant, the obligation to do more than file a general exception to the admissibility of the evidence, or to the competency of the witness; all it is necessary “to render such exception available is, it must be sufficiently definite to apprize the opposite party of the particular witnesses, or evidence designed to be excepted io,” and this we think has been done in this ease. The evidence is plainly enough designated by the exception, and this is all that is required. The argument founded on the form of the exception, in our opinion, is not tenable.

It is urged, that inasmuch as the words of the exception are, “because it itj does not appear that the depositions were taken regularly and after due notice,” the (raws is cast upon the exceptant, to show the irregularity and want of notice. In this view we do not concur. We have already said that we hold it essential, it should appear on the face of the return or deposition, that the terms of the commission or notice as the case may be, have been complied with. But independently of this, it is always incumbent on a party to establish his right to the use of a commission, to show its execution has been in compliance with its terms.

A compliance with its terms is the condition on which it is granted, and on which it can — apart from consent of parties — be made available. A simple exception brings before the court the whole question of admissibility. The reasons assigned, or arguments used to establish its inadmissibility, can only be regarded as aids to the