Parker v. Sedwick , 5 Md. 281 ( 1853 )

Eccleston, J.,

delivered the opinion of this court.

In this case a commission to take testimony was issued the 30th of April 1850, to three commissioners of Richmond, in Virginia. On the 3rd of May following, the attorney of the plaintiff gave to the attorney of the defendant, then in the city of Annapolis, the following notice: “Above is a copy of the interrogatories, which accompany the commission, in the case of S. H. Parker vs. J. C. Sedwick, issued from Calvert county court, to Samuel T. Pulliam, William Goddin and Edward C. Howard, of Richmond, Virginia. I further inform you that the testimony will be taken on Friday, the 10th inst., at Richmond.” It is admitted that this notice was not given in the name of, or as emanating from, the commissioners; that between Annapolis and Richmond there was a railway and daily mail; and that the defendant resided in Calvert county, in this State, about fifty miles from Annapolis.

The commission was executed at Richmond, on the 10th of May 1850, the witnesses being examined upon interrogalories, copies of which are referred to in the notice to the defendant’s attorney.

When the plaintiff offered to read to the jury the testimony taken under this commission, it was objected to as inadmissible, because the interrogatories did not appear to have been Sled, and the defendant notified thereof a sufficient time before the issuing of the commission to give him an opportunity of filing cross-interrogatories. The court sustained the objection, and this decision is the foundation of the first bill of exceptions.

It has been several times decided that under a foreign commission, when interrogatories are filed time enough before the commission goes out to allow the opposite party an opportunity of filing cross-interrogatories, no notice need be given of the time and place when and where the commission is to be executed. 2 H. & J., 98, 99, Owings vs. Norwood. 4 Gill, 318, Parker vs. Sedwick.

In Calvert vs. Coxe, 1 Gill, 97, 216, a notice of the time and place of taking the testimony, given by the commissioners, was held sufficient. But we have met with no case where a notice of this sort, coming from an attorney, without any evidence of its being authorized or sanctioned by the commissioners, has been deemed available. It is very certain that neither a party or his attorney has authority to fix the time and place, so as to make it binding upon the opposite party, or upon the commissioners; for this right, from the language of the commission, as well as the nature of the duty which the commissioners are to perform, must be in them. And therefore any notice which does not come from them, or is not given with their consent and approbation, can have no binding effect upon the party on whom it is served. In this instance the admission is, that the notice was served upon the defendant’s attorney, “but not in the name of, r.or as emanating from, the commissioners.” And indeed, from the shortness of the time between the issuing of the commission and the day of the notice, the attorney might very well have believed that the commissioners never had authorized the notice. In the entire absence of any proof that it was given with their approbation, we think the notice was defective, and that the court were right in refusing to let the evidence be read to the jury.

The second bill of exceptions sets out the proceedings, and decree or judgment, in Virginia, in a suit by Charles S. Jones against the present appellant, upon a bond given by the appellee, as administrator of Benjamin Sedwick, in which the appellant is a surety. There is also a judgment on the same bond against the appellee, in favor of Charles S. Jones. Following what appears to be a very full record of these judgments, is a copy of a fieri facias against Parker, on which is endorsed: “Received payment in full of this execution from Stafford H. Parker.” — Signed, “Charles S. Jones, January 22nd, 1841.” The clerk then certifies, “that the writing subjoined to the preceding transcript of a record is a true copy of a writ of fieri facias, issued on the judgment in the said record mentioned, and of the endorsements made on the said execution, which is now returned to and filed in my office.”

When this record, including the endorsement on the fieri facias, was offered in evidence, the defendant applied to the court to exclude from the jury the endorsement of the receipt, as being incompetent, in connection with the record to prove the payment of the judgment by Parker to Jones, and the court decided that the receipt so endorsed on the fieri facias. was inadmissible for that purpose.

The record shows that the judgment against Parker was a separate judgment against him upon the administration bond, and that the fieri facias was issued against him upon that judgment. If the sheriff had returned the writ satisfied, without saying by whom, the legitimate inference would have been that it was paid by the defendant in the execution. And we see no good reason why this receipt should not be prima facie evidence of the payment by Parker. According to our laws, (by which we are to be governed, as there is no proof that those of Virginia differ from ours,) a fi. fa. is delivered by the clerk, who issues it to the sheriff, and it remains in his possession, or that of his deputy, until returned to the clerk. Being thus in the hands of an officer of the law, in the absence of proof to the contrary, it must be presumed that any entry or endorsement upon the writ, when returned, which relates to the payment or satisfaction of the claim, is there with the knowledge and approbation of the officer, and that it is true; for returning the writ with the endorsement, without any act or entry on his part to contradict or deny the truth of the endorsement, it is to be considered as his return, so that a receipt like the present is virtually a return by the sheriff, that the execution had been satisfied by the defendant.

As evidence of the practice in this State, so far back as 1803, in regard to a sheriff’s return upon an execution, we refer to the case of Williamson vs. Perkins, 1 H. & J., 452. There the sheriff returned a venditioni exponas, “countermanded by plaintiff.” An endorsement on the back of the writ, signed by the plaintiff, was recognized by the court as part of the return, although no particular reference was made to the endorsement by the sheriff.

The decision of the court below in the first bill of exceptions we think is correct, but the ruling in the second is-erroneous, and therefore the judgment will be reversed.

Judgment reversed and procedendo awarded.