Mitchell v. Mitchell , 1 Gill 66 ( 1843 )

Stephen, J.,

delivered the opinion of this court.

Two exceptions were taken to the opinion of the court below in this case, both of which relate to questions of evidence.In the first exception, the witness produced to give evidence for the plaintiff being incompetent, by reason of interest, certain paper writings or documentary proofs were offered in evidence, for the purpose of restoring his competency, which being held by the court sufficient for that purpose, the defendant excepted. Much of the argument urged by the appellant’s counsel is rendered unavailing by certain admissions and facts stated in the bill of exceptions and the operation of law upon-those facts and admissions. In 2 Tidd’s Practice, 913, the following principle of law is stated in relation to the legal effect and eonclusiveness of a bill of exceptions; “when the bill of exceptions is sealed, the truth of the facts contained in it, can never afterwards be disputed; for this principle, Show. P. G. 120, is referred to. The ground upon ■which the witness produced by the plaintiff was contended to be incompetent, being his liability for any devastavit of the plaintiff, as her surety in the administration of her husband’s estate, one of the proofs produced to obviate that objection, was a release executed by Joseph T. Mitchell, who is stated in the bill of exceptions to be the sole heir at law of his father Joseph T. Mitchell, and who is expressly admitted in said bill of exceptions to have been of full age at the time it was executed; a certified copy of said release was also produced, authenticated by the signature and seal of the Register of Wills for Kent county. This release contained an express acknowledgment that he had received his full share of his father’s estate, and released the administratrix and her sureties from all responsibility therefor. This release was moreover executed after a lapse of eight years from the time letters of administration were granted, and was acknowledged before a justice of the peace of Kent county, according to law, and was on the same day duly admitted to record. The administration bond, which was given in evidence by the defendant, to shew the incompetency of the plaintiff’s witness, fully evinces that letters of administration were obtained from the orphans court of Kent county; and, consequently, proves that the acknowledgement was legally made, before a person competent to take it. There is nothing, therefore, in the objection raised by the counsel for the appellant, that it did not appear that the acknowledgment was made before a justice of the peace, in the county where the letters were obtained, and that therefore the release was not legally recorded, so as to make a copy of it admissible in evidence. In 2 Harr. & Gill’s Rep. 57, this court, when speaking upon a similar subject, say: “they were recorded in the office of the Register of Wills of Prince George’s county, where George Briscoe died, and where, of course, letters of administration were taken out on his estate, having been previously acknowledged before the said Register. So in 6 Harr. & John. Rep. 234, this court say, “where an instrument of writing is required by law to be recorded, the enrolment of it is evidence of all circumstances necessary to give it validity. But this evidence is not conclusive, it is only prima facie, and like all prima facie evidence, may be rebutted.” The condition of the administration bond given in evidence by the defendant, speaks of Ann Mitchell, as the administratrix of Joseph T. Mitchell, late of Kent county, deceased; and where of course, as this court say in 2 Harr. & Gill, 57, letters of administration were taken on his estate. No sufficient proof was adduced in the court below to impeach the release or to impair its validity: the written assignment made of the choses in action in August 1841, was not sufficient to invalidate it upon the ground of fraud, as they might have been transferred by parol when the release was executed; and the written assignment subsequently made, might have been intended, as more authentic and better evidence of that fact. As further proof of the competency of the witness to testify in the cause, the plaintiff offered in evidence a eopy of her administration account, which is stated in the bill of exceptions to have been passed by the court on the 12tb of May 1832, and is certified by the Register to be a true copy, taken from the records of his office, and is authenticated by the seal of his office annexed. The admissibility of this account was objected to upon the ground that the Register had no authority by law to record it, and that therefore a eopy was not evidence. We think that such an objection was entirely groundless and untenable; that the Register was not only authorised, but bound by law to record it, for the purpose of shewing to creditors and others interested in the estate, how and in what manner the assets had been administered. By the act of 1798, ch. 101, sub-ch. 15, sec. 9, it js enacted that, “the Register of Wills in each county already, or hereafter to be appointed, agreeably to the Constitution, shall diligently attend each meeting of the orphans court in his county, and under their direction, make full and fair entries of their proceedings;” among which proceedings are manifestly intended to be embraced, all administration accounts passed and settled under the sanction of such courts. This account, in which a number of creditors appear to have been paid, was passed by the orphans court, after notice had been given agreeably to the order of said court for creditors to exhibit their claims for payment, in the year 1832, more than ten years prior to the trial of this case in the court below, and considerably more than twelve months after the said notice had been published according to said order. After such a lapse of time, it was we think fair to presume, that there were no outstanding claims of creditors to be satisfied, when this case was tried in the court below, and that the witness was not on that account incompetent to testify. The administration bond offered in evidence by the defendant, bearing date on the 30th day of November, in the year 1830, and the cause was tried in Charles county court at the August term 1842, a period of nearly twelve years had therefore elapsed from the date of the letters, before the trial in this cause took place. In the absence, therefore, of any proof of indebtedness, it is, we think, fair to infer, that they were all satisfied and discharged at the time the surety in the bond was offered as a witness. In 5 Gill & John. Rep. 344, this court say: “it appears then, that a period of about eleven years had expired, from the time letters of administration were taken out upon his estate, before the mortgage was executed;” and this court have said in the case of Allender and Riston, 2 Gill & John. 86, “in the case now before this court, it no where appears that there were any debts remaining due and unpaid at the time of the mortgage, or if there were, that the defendants knew of them;” and to use the language of Mr. Justice Ashhurst, in 4 Term Rep. 645, “if the creditors will lie by, and not assert their rights, it is reasonable for a third person to suppose that all the debts are satisfied.” Under this view of the case, we think that the opinion of the court below in the first bill of exceptions was correct, and that all objection to the competency of the witness was sufficiently removed.

We think, also, that there was no error in the opinion of the court below in the second exception. The defendant in the suit was dead, and no new party had been made when the notice was given and the deposition was taken by the commissioner. The act of 1828, ch. 165, under which the deposition was taken, manifestly contemplates a case where both plaintiff and defendant are in existence, and actually parties to the litigation upon the record at the time the notice is given by the commissioner, and the deposition is taken in pursuance thereof. The language of the 2nd section of the act is, “that either party, in any action depending in the said courts, after due notice to the other party or his attorney, agreeably to such rule as shall be made by said courts respectively, may take the deposition of any witness before any one of the said commissioners, to be used as testimony on the trial of such action.” The defendant in this case being dead, and no new party having been made, the deposition was taken without legal warrant or authority, according to the provisions of this act, and was, therefore, properly rejected by the court. We wish it to be understood, that in deciding the question as to the admissibilty of the deposition offered in evidence in this case, we have been governed exclusively by what we deem the true construction of the Act of Assembly under which it was taken; and we do not wish to be understood as giving any sanction to the rule of court upon that subject, adverted to in the course of the argument, and which rule we, think confers a power upon the commissioners, which was intended by the legislature to be exclusively exercised by the courts, or the judges thereof. It is true, that Acts of Assembly made relative to the administration of justice, are to be liberally construed for the attainment of that important object, but it is the province of courts of justice to expound laws, and not to legislate; that is a duty which belongs to a different department of the government. We think that there is no error in the judgment of the court below, and that the same ought to be affirmed.

JUDGMENT AFFIRMED.