Main v. Lynch

Irving, J.,

delivered the opinion of the Court.

The questions involved in this appeal grew out of an attachment sued out of the Circuit Court for Carroll County by the appellee against Elijah Wagoner, and which was laid in the hands of the appellants as garnishees. It is a proceeding under the Act of 1864, ch. 306, and the affidavit, as that law requires, set out that the defendant had assigned, disposed of, or concealed his property, or some portion thereof, with intent to defraud his creditors, or was about to do so. The attachment having been laid in the hands of the appellants as garnishees, they appeared and filed their pleas, viz., one on the behalf of the debtor denying the fraudulent assignment or disposition of his property to defraud his creditors, and two on their own behalf, putting in issue the fact whether they had any goods or property of the debtor, and whether the' specific property attached was the debtor’s property, the garnishees claiming it as belonging to them.

Issue was joined and all errors of pleading were waived. The only questions for our decision arise on the *668 rulings of the Circuit Court at the trial. After all the evidence was in and sundry prayers had been offered to the Court, including one directing the jury “that unless they found that a copy of the short note in the cause was set up with the writ at the court-house door by the sheriff,” they must find for the defendants, “and that there was no evidence of such fact,” the plaintiff moved for leave to the sheriff to amend his return by stating that he had set up a copy of the short note at the court-house door, on the day of the delivery to him of the attachment, and offered to prove the delivery to the sheriff of such short note, and that he did on the day of the delivery of the attachment to him set it up at the court-house door. This motion was opposed by the defendants because of the twenty-eighth rule of that Court which is as follows: “ When a plaintiff or defendant has closed his case on the testimony, and a prayer shall be offered to the Court upon such testimony, he shall not offer any additional evidence on the subject to which the prayer refers or with regard to the case in any particular ; ” hut the Court permitted the amendment and received the proof offered. It is the ruling of the Court on this motion which forms the ground of the first exception. “This Court has always regarded a legitimate rule of the Court as prescribing a law to the Court.” Dunbar vs. Conway, 11 G. & J., 97 ; and in Wall vs. Wall, 2 H. & G., 82 , and Gist and Scott, Adm'rs of Gist vs. Drakely, 2 Gill, 346 , this Court has said there exists no discretion in an inferior Court to dispense with, its own rules, or innovate on the established practice. The rules of Court which are, by the decisions referred to, given the force of law, until wholly rescinded, are such rules as a Court has the power to pass; for a Court cannot pass a rule which takes away from a party litigant a right positively secured by law. Union Bank of Maryland vs. Ridgely, 1 H. & G., 407. In the case of Berry vs. Griffith, 2 H. & G., 343 , this Court said the sheriff has *669 a right in due time to correct his return, so as to make it conform to the truth whatever that may he; and that it is his duty to do so, not only as respects himself hut all concerned. The right of the sheriff to amend his return, and the right of parties interested to have him amend his return, is a common law right, and is in no way dependent upon the provisions of Art. 75, sec. 23, of the Code of Public General Laws. The fact that it is a writ of attachment, does not affect the right to amend the return to the writ. In Boyd, et al. vs. Chesapeake & Ohio Canal Co., 17 Md., 209 , it is so expressly decided. It is true that in that case the amendment allowed was within the Term to which the process was returnable ; but in our. opinion in cases of this character, the sheriff may amend his return, and the parties are entitled to have him do it, at any time during the trial and before the jury retire, so as to make it conform to the fact, and certify all that it was his duty to certify, unless perchance the rights of third parties had meanwhile attached which would render it unreasonable to permit it.

He is answerable for neglect of duty as well as for a false return, and if he has neglected to make a proper return, or has by inadvertence, made a return which is untruthful, justice to him has always allowed the error to be corrected within a reasonable time, by amending his return. By uniform practice in cases on trial, it has been held to he within reasonable time for it to be done before his mistake had resulted in irretrievable damage to litigants, that is to say, at any time before the case was finally given to the jury and they had retired. Conceding therefore the rule in question to have been intended to reach so far as the appellants contend, we would he compelled to hold, that the rule, being the mere creature of the Court, could not deprive the parties to the cause of a right which the law guaranteed to them, and would interpose no bar to the Court’s permitting the amendment to *670 bé ;made, when, and. as it was made. But in our opinion the rule in question was not intended to exclude such evidence.as comes to the Oourt and jury from the necessary proceedings in a cause. It certainly could not have been so intended, and ought not to be so construed, and that the Oourt .in which it prevails do not so understand it, appears from '.their ruling, the exception to which we are now considering. The sitting up of a copy of the short note at the court-house door is a part of the special proceeding necessary:to; support a judgment on attachment. The return of the sheriff is also a necessary part of the proceeding. From. it the Oourt gets prima facie evidence that all that the sheriff was.required to do was done by him. All intendments, are made in favor of the officer, and especially that his. return is truthful in the facts which it asserts. If it could be shown affirmatively that the short note was not set .up, the proceedings would, on motion, be quashed; which, in fact, was the proper mode of raising the question. The return,' as amended, was evidence of the fact, that a copy was set up, and ought to have gone to the jury, notwithstanding the rule relied on; and if any other evidence touching the matter was admitted, which was inconsistent, with the rule, it was superfluous, and the appellants were hot ■ injured by its admis sion. We find no error in the ruling embodied in the first exception.

The second exception relates wholly, to the prayers granted and rejected. From the record it appears, that Wagoner, the defendant in the attachment, was a manufacturer of and a dealer in agricultural implements, purchasing and selling large quantities thereof, and that he was also a dealer in sewing machines, which he bought of the manufacturers and sold in large quantities. Being in debt to the manufacturers for machines and implements to the extent of twenty thousand dollars and more, for purchases during the year 1878, which he had bought *671 and sold, on the 7th day of October, 1878, he made an assignment for the benefit of his creditors to the garnishees, who are the appellants. Under this deed of assignment, the appellants claim title, and protection from the attachment. The appellee, the plaintiff in the attachment, attacked this deed as fraudulent, claiming it to be one of sundry acts of the grantor by which he was assigning, concealing and disposing of his property with intent to defraud his creditors. Evidence of various doings and acts of the grantor, and Martin L. Main (one of the appellants) as his agent, was given to the jury and certified in the record from which a jury might find that the defendant, Wagoner, had been disposing of and secreting his property to defraud his creditors ; and that the gar nishee, Main, was cognizant of his fraudulent acts and aided him in them, and that the deed of assignment was also executed in furtherance of his fraudulent purpose.

The plaintiff’s prayer, to the granting of which the appellants excepted, substantially told the jury that if they found the defendant Wagoner indebted to the plaintiff as alleged, and that he was largely indebted to other persons, and that being so indebted he had assigned, disposed of or concealed his property, or some portion thereof, with intent to defraud his creditors, and that the deed of trust to the garnishees was executed by the defendant Wagoner in pursuance of his fraudulent intent and purpose, and as a means of covering up the assignment, disposition and concealment of his property, or some portion thereof) with intent to defraud his creditors, and that the deed might, by its terms, operate in aid of the fraudulent intent; and that the garnishees had property, or the proceeds thereof, which came to them by virtue of the deed of assignment, then the verdict should be for the plaintiff on all the issues in the cause.

So far as objection appears to have been made to this instruction, we can see no error in granting it. Assuming *672 that there was evidence tending to support all the facts which the prayer put to the jury to find, as we must, from all that appears in the record, we think that the prayer properly laid down the law applicable to the case. The question which it raises is not a new one, hut has been the subject of expre.ss decision in this Court.

In Foley, c. t. a. vs. Bitter, 34 Md., 653 , the deed which was assailed as fraudulently intended to delay, hinder, and defraud the creditors of the grantor was an assignment professedly for the benefit of his creditors..

In that case the Court held that the evidence established the fact that the grantors were engaged in secreting property which did not go, and was not intended to go, into the hands of the trustees, and the Court said it was well settled, “as well upon reason and authority, as upon the words of the Statute, that if the assignment he made with the fraudulent intent to delay, hinder, or defraud creditors, and at the time of its execution he intended to be, and by its terms may operate as, an instrument in aid of the* fraud, then it falls c within the words as well as the mischief of the Statute/ and is void as fraudulent in fact.” The prayer under consideration, whether considered with reference to the Statute of 13th Elizabeth or the Act of 1864, properly presents to the jury the facts which they are to find to justify a verdict for the plaintiff.

The first and second prayers of the appellants were properly rejected. They proceed upon the theory that the deed, being regular on its face and duly recorded, it was not to he affected by the fraudulent acts of the grantor, and wholly excludes the evidence of fraudulent intent, which, the Statute declares, shall avoid it, if found to exist.

The third and ninth prayers of the appellants required the jury to he told that they must find that the deed not only was capable of defrauding the creditors, hut did actually defraud them. There was no such issue before *673 the jury. The Statute makes the intent to defraud sufficient to overthrow the deed, if the intent be found to have prompted or entered into the making of the deed; and has been fully discussed in disposing of the plaintiff’s first prayer.

The fourth and sixth prayers of the appellants undertake to declare the insufficiency of certain acts conceded to be fraudulent to establish a fraudulent intent in the execution of the deed. They were acts which the jury were hound to consider and might act on, and the prayers were correctly refused.

The fifth prayer proposed to exclude from the jury the consideration of a certain judgment of Martin L. Main against Wagoner, and confessed by Wagoner on the first day of October, 1878, only six days before the execution of the deed. The rejection of this prayer was clearly right. The evidence had been allowed to go without exception so far as the record shows. There was proof tending to connect Main with Wagoner in the fraudulent disposition of his property, and the fact that this judgment was confessed to him by Wagoner at that juncture, was a véry proper circumstance to go to the jury, under the circumstances surrounding the case, and the prayer was therefore calculated to mislead, and was properly rejected.

The tenth prayer of the appellants was intended to take from the jury the consideration of the acts of Main, one of the grantees in the deed and one of the garnishees, after the deed was executed, as not tending to throw any light on the intentions of the grantor in making the deed.

Evidence had gone to the jury tending to show Main’s knowledge of Wagoner’s fraudulent purposes, and tending to show participation by him in the fraudulent acts anterior to the execution of the deed. His acts afterwards, therefore, formed an eminently proper subject of evidence and consideration by the jury in determining the question submitted to them. If Main was in conspiracy with *674 Wagoner, and the jury so found, then they were pursuing a common object; and the acts of Main were also the acts of Wagoner, and could not be excluded, or denied their proper weight in making up a verdict.

(Decided 18th November, 1880.)

The proposition contained in the eleventh and twelfth prayers of the garnishees is disposed of in our decision on the first exception, and requires no further comment.

The thirteenth prayer of the appellants, which asked that the jury be instructed “ that under all the pleadings and evidence in the case their verdict should he for the garnishees,” was wholly inconsistent with the theory of the plaintiff’s prayer, which we have said was correctly granted. Finding no error, the judgment must he affirmed.

Judgment affirmed with costs.