Baden v. State ex rel. Clarke , 1 Gill 165 ( 1843 )

Dorsey, J.,

delivered the opinion of this court.

It is true that on the first trial of this case, which took place-in the county court, the only issue to be tried by the jury was, whether Thomas M. D. Baden had collected and received the sum. of money, for the recovery of which, the action was instituted. But do the issues tried by the last jury at all vary, in respect to those issues, the effect and operation ascribed by this court to the testimony adduced by the appellee on the first trial? We think that they do not. If the promissory note or certificate of indebtedness given by Thomas M. D. Baden, the collector, was an implied admission that he had collected and received the amount therein specified, it was equally an implied admission that the same had been levied, and the levies transferred to William Clarke. Upon no other ground than his acknowledgment of the existence of those facts, can his giving such a note or certificate be accounted for. Such admissions by the collector having been determined by this court, in the first trial before it, to be prima facie evidence against the collector and his securities, the county court proceeding with the trial under the procedendo, could not do otherwise than overrule the objection made to the testimony, and was fully justified in the instruction which it gave to the jury.

Two reasons have been urged why the judgment of the county court ought to have been arrested. The first is, that “the replication is uncertain in its statement of the persons for whom the levies mentioned therein, were made, and the sums respectively allowed to them.” Whether this objection to the replication, if taken by the proper demurrer, in the court below, should have been sustained, we mean to express no opinion. But as it was taken in arrest of judgment, it wag correctly overruled. If as insisted, it was necessary that the replication should state the amount of each levy, and the name of the person for whom it was made; and that proof thereof must be offered to enable the jury to find the verdict which they did; after the finding of the verdict on the motion in ay-rest, the court are bound to assume, that such testimony was .given to the jury however false, in point of fact, that assumption might be. In acting on a motion to arrest the judgment, the court is not to look to the bills of exceptions, or out of the other proceedings in the cause as exhibited by the record, in forming its presumption of the proof which had been submitted to the jury.

Similar reasons may be assigned for overruling the second ground, relied on for arresting the judgment; which ground was, “that there is no sufficient averment of a legal transfer and assignment of said levies to William Clarke, and consequently no title in him, to demand payment thereof.” It was not necessary, as has been insisted, that such transfer to be valid, must have been in writing.

If the consequences of the affirmance of this judgment be so disastrous to the interests of the appellants, (the securities) as it has been represented they may be, they certainly had the means of avoiding the dilemma in which, it is said, they are now involved, had they used them at the proper epoch in the cause. Had a special demurrer to the replication, assigning as the grounds of its insufficiency, that it did not state the amounts of the several levies, and the names of the persons for -whom made, been overruled by the county court, .a knowledge of those facts, so essential to the defence of the securities, could readily have been obtained in time for them to make their defence, and prepare for the trial, by an application to the court for an order requiring the appellee to file a bill of particulars of his claim.

Approving of the conduct of the court below, in overruling the motion in arrest of judgment, and the objection stated in the bill of exceptions, to have been raised to the testimony offered by the appellee, and also approving of the instruction given by the court to the jury, we affirm its judgment.

JUDGMENT AFFIRMED.