Ecker v. McAllister

Grason, J.,

delivered the opinion of the Court.

This case was before this Court at the April term, 18Í6, when the judgment was reversed and a new trial awarded. See 45 Md., 290 . It was again tried in the Circuit Court for Frederick County, and, the judgment being for the plaintiff, the defendant has again appealed.

The first exception of the defendant is taken to the ruling of the Circuit Oourt in refusing to permit to be introduced the evidence of Jacob S. Bohn, taken and returned under a commission to James W. Collins, of Pennsylvania, for the purpose of contradicting said Jacob S. Bohn, who was orally examined as a witness for the appellee at the second trial of this case. The commission and the evidence of Bohn taken under it were objected to *370 generally, and also on the ground that the commission had been improperly opened. The first part of the objection goes to the admissibility of the commission, return and evidence taken under it, on the alleged ground that they were not inclosed in an envelope under the hand and seal of the Commissioner, and addressed to- the Judges of the Court. This is no longer an open question, as upon the former appeal this Court decided that the return to the commission was under the hand and seal of the Commissioner and was, in all respects, formal and regular. This point having been-so ■ decided on the former trial, that decision is the law of this case, and we have seen no reason to doubt its correctness.

It appears that the commission, return and evidence were enclosed in an envelope, addressed to “ Clerk of Frederick County Circuit Court, Frederick, Md.;” that it was received at the said Clerk.’s office on the third day of December, 1815, and it was proved that when a paper is received at said office, directed to the Clerk, it is opened by the Clerk or one of the deputies ; that neither the Clerk nor any of the deputies recollected who opened this particular commission, hut that the endorsement on the envelope, “Filed Dec’r 3rd, 1815,” and on the commission, “Ret. and filed Dec. 3rd, ’75,” is in the hand-writing of Adolphus Fearhake, chief deputy in the said Clerk’s office, and that said commission, return and evidence have been in the Clerk’s office ever since their return. It further appears that there is no rule of Court directing the Clerk to open such commissions, and that the Judge gave no special order to the Clerk to open this commission; and that the Judge did not open it, and would not have opened it, if it had been presented to him, as it was directed to the Clerk and not to the Judges of the Court.

These facts did not appear upon the former appeal, hut even if they had, we should have held that the commission had been properly opened. Adolphus Fearhake swears *371 that the commission came to the Clerk's office in an envelope closed with mucilage, as envelopes usually are, and with a postmark upon it, and that it has been in the custody of the Clerk ever since its return. There is not any evidence whatever that the commission was ever changed, or tampered with in any manner from the time it left the hands of the Commissioner till the time when the offer was made to introduce it in evidence in this case. There is not an intimation of its having been altered or tampered with. The objection to its admissibility rests solely upon the naked technical ground that it was not opened by the Judge or by his special order. We think it may be fairly presumed from the evidence in tbe record that this commission was opened either by the Clerk or one of the deputies in the office of the Clerk, and the Clerk being the organ and hand of the Court in the transaction of its business, a commission thus opened is, in contemplation of law, opened by the Court or Judge.

The Circuit Court erred, therefore, in refusing to permit the evidence of Bohn to be read to the jury for the purpose of contradicting and impeaching him.

After further evidence given for the plaintiff by said Bohn and himself, the defendant, for the purpose of contradicting said Bohn and the plaintiff, offered to prove, by offering in evidence the defendant’s first bill of exceptions, taken at the former trial of this case, what each of said witnesses had sworn to upon said former trial.

To its admissibility the plaintiff objected, and the Court refused to permit it to be read to the jury, and the defendant excepted. This paper was neither written nor signed by the witnesses, whose testimony it purported to contain; was prepared by counsel for the purpose of basing upon it •a legal proposition to be decided by this Court, and, for aught we know, may have contained but a part of the testimony-given. The only proper mode of proving what a witness orally testified to on a former trial is to examine *372 witnesses for that purpose who heard his evidence given. We think the Court was clearly right in rejecting the proof offered.

The evidence offered in the third exception was clearly inadmissible. The offer was to prove by Maynard that he had instituted proceedings in bankruptcy against Bohn and the plaintiff, about the 17th day of November, 1869, for the purpose of showing, in connection with the other evidence in the cause, that the plaintiff knew that Bohn was insolvent when the former accepted a bill of sale and .an assignment from the latter on the 10th day of November, 1869. Evidence of the plaintiff’s knowledge of Bohn’s insolvency, after the date of the bill of sale and assignment could not affect those transactions. To be admissible it must relate to such knowledge antecedent to or at the date of those papers.

The fourth and fifth exceptions were abandoned at the argument of the cause.

The sixth exception was taken to the granting of the plaintiffs first, seventh and eighth prayers, and to the rejection of the fourth, fifth, sixth, seventh, eighth and eleventh prayers of the defendant.

The appellee’s first prayer, if the jury should find the facts therein stated, assumes as law that the forbearance of the appellee to institute proceedings in bankruptcy against Jacob S. Bohn furnished a sufficient legal consideration for the promise of the appellant to pay the debt due by said Bohn to the appellee, notwithstanding the jury should find that on the 10th of November, 1869, the appellee had received from said Bohn an assignment of his book accounts, and a bill of sale of his personal estate to secure a previous indebtedness of said Bohn to the appellee, unless they should find that the appellee, at the time of the assignment and bill of sale knew, or had reasonable cause to believe that Bohn was insolvent, and that the burden of proving such knowledge or reasonable cause to *373 believe, was on the appellant. His seventh prayer contained the legal proposition, that a promise to forbear proceedings at law is a good consideration to support a promise to pay Bohn's debt to the appellee, whether the proceedings at law could have been successfully prosecuted ■or not, provided the appellee bona fide believed he could have sustained such proceedings and the appellant believed the non-prosecution of the same would be beneficial to him. ^The law is well settled that a mere forbearance of <la claim or demand', before suit brought, which is not in fact a legal" demand, is not of itself a sufficient consideration to support a ‘promise. ”J Such is the language of this Court in the case of Hartle vs. Stahl and Wife, 27 Md., 172 , quoting from the case of Stoddard vs. Mix, 14 Conn., 22 . The same principle was also decided in Jones vs. Ashburnham, 4 East, 546, and Wade vs. Simeon, 52 Eng. C. L. Rep., 563, 564, and Busby vs. Conoway, 8 Md., 62 .

The same principle was laid down in this case when formerly before this Court, and is the law of this case.

At the time that the appellant is alleged to have made the promise to pay Bohn’s debt to the appellee, had the latter the legal right to institute proceedings in bankruptcy ? Clearly not, if he had received from Bohn the •assignment and bill of sale with knowledge or reasonable ■cause to believe that Bohn was then insolvent. The Bankrupt Act prohibited any one from instituting proceedings in bankruptcy, who did not hold a claim provable in bankruptcy. There was error therefore in granting the appellee’s seventh prayer, under which an instruction was granted that a promise to forbear proceeding at law was a good consideration to support the promise to pay the ■debt, as alleged in the narr., if the' jury should find that the plaintiff believed he could have sustained the proceedings in bankruptcy against Bohn, and the defendant believed that forbearance to proceed would be advantageous and beneficial to him.

*374 The 35th section of the Bankrupt Act forbids any sale, transfer, or assignment by a person, who is insolvent, or in contemplation of insolvency, of any part of his property with a view to prevent his property from coming to his assignee in bankruptcy, or to prevent the same from being distributed under said Act, or to defeat the object of, or to hinder or evade the effect of the provisions of the Act, and declares that they shall he void and that the assignee may recover such property. And if such sale, transfer, assignment or conveyance shall he made out of the usual and ordinary course of business of the debtor the fact shall be prima facie evidence of fraud.

The proof shows that Bohn and the appellee had been carrying on the milling business in partnership, and that they stopped business on the 1st of November, 1869, and had a settlement, and that on the 10th day of the same month, Bohn assigned all his book accounts and gave a bill of sale of all his personal property to the appellee, and on the same day conveyed all his estate in land to the appellant; thus stripping himself of all the property he had, and leaving himself with but twenty dollars in money, and other debts unpaid and unprovided for. All these transactions were clearly not in the usual and ordinary course of Bohn’s business, and therefore were, under the 35th section of the Act, prima facie evidence of fraud, of which the appellee was hound to take notice, and the assignment and bill of sale to himself, under the circumstances, were sufficient to put him upon inquiry. Had he made inquiry, as he was bound to do, when these conveyances to him, out of the usual and ordinary course of this debtor’s business, were offered, he would readily have-ascertained that Bohn had stripped himself of all his property and left other creditors unsatisfied.

The appellee, having received this assignment and bill of sale under such circumstances, has the onus cast upon him of proving that they were received by him without *375 knowledge, or reasonable cause to believe, that Bohn was then insolvent or in contemplation of insolvency. For this reason there was error in granting the appellee’s first prayer and in rejecting the appellant’s fourth and eighth prayers.

(Decided 1st July, 1880.)

The appellant’s fifth, sixth and seventh prayers ought to have been granted for the same reasons that we have above assigned for reversing the rulings of the Circuit Court in granting the appellee’s first prayer and in rejecting the fourth and eighth prayers of the appellant.

The amended narr. is not contained in the record and as no point is made in the appellant’s brief with respect to the rulings of the Court below in granting the appellee’s eighth prayer and rejecting the appellant’s eleventh prayer, we must presume that said rulings are correct.

As there was error in the rulings of the Circuit Court in refusing to permit the commission, return and evidence as offered in the first exception, to be read to the jury, and in granting the appellee’s first and seventh prayers, and in rejecting the appellant’s fourth, fifth, sixth, seventh and eighth prayers, the judgment appealed from will be reversed and the cause remanded for a new trial.

Judgment reversed, and new trial aioarded.