Burgess v. Lloyd , 7 Md. 178 ( 1854 )

Tuck, J.,

delivered the opinion of this court.

This cause comes before the court on the following slate of the pleadings, which have been amended since the former appeal, reported in 4 Gill, 187. The declaration is in the usual form, not assigning breaches. The defendant pleaded, first, general performance by Speake and Pye, to which the plaintiff replied, assigning three breaches, as follows : 1st. Thai. Speake and Pye did not prosecute the injunction with effect; 2nd, That they did not pay the judgment and costs, mentioned in the recital of the bond; 3rd, That they did not pay all costs, damages and charges, occasioned by the delay of execution on the plaintiffs’ judgment. These replications conclude with a verification. The defendants rejoined: 1st, That Speake and Pye did prosecute the writ with effect; 2nd, That they did pay the judgment and costs, mentioned in the bond; 3rd, That they did pay the costs, damages and charges, &c., concluding severally to the country; to each of which the similiter was entered. The pleadings on the plea of general performance were thus brought to issue.

The second plea averred that Speake and Pye prosecuted the writ with effect; that the court of chancery decreed that they should not pay the judgment and costs recited in the bond; and that they obeyed all the orders and decrees of that court, concluding with a verification: to which the plaintiff replied, that the principals in the bond did not prosecute with effect, and that the court of chancery did not decree that they should not pay the judgment and costs recited in the bond, concluding to the country, on which the similiter was entered.

The third plea, that they did prosecute with effect, and did obey all orders and decrees of the chancery court, concluding with a verification, was also replied to by a traverse, that they did not prosecute with effect, and did not obey, &c., and tender of issue, on which issue was joined.

The fourth plea, plene administravit, and the fifth, no assets of Thomas Burgess were replied to, and issues framed in the usual manner.

The sixth plea averred, that Speake and Pye prosecuted the writ with effect, until they died, after which the suit in chancery abated ; to which the plaintiff replied, that they had not prosecuted as stated, and that the suit had not abated, concluding with a verification. The defendants’ rejoinder to this replication reiterated the matters of the plea, and tendered an- issue, which was accepted.

The seventh plea, non est factum by Burgess, was replied to by a traverse, and issue entered in the usual form.

We have noticed the pleadings with some particularity, because several of the questions raised in the court below, are to be considered with reference to the issues.

The first exception relates to the admissibility of certain evidence offered by the defendant, for the purpose of showing, that a case on the equity side of Charles county court, between Speake and Pye, and the obligees in the bond, had abated and was never revived, which the court rejected as inadmissible for that purpose. We do not discover any error in this ruling of the court. The defendant had himself offered evidence, by the docket entries, that the injunction in that equity case was dissolved on the 27th March 1840.-Upon what principle could he be permitted to show, by parol, that the suit had abated before that time ? We think this question is substantially settled in 4 Gill, 192, 193. But the offer was properly rejected for another reason. The defendants’ sixth plea, alleged the prosecution by the principals in the bond, and their performance of the orders and decrees of the court of chancery, until their death, by which the suit abated. Evidence of the abatement of a suit between the same parties in another court, could not establish the issue joined-on that allegation. This exception-is affirmed.

The second exception was taken by the defendant, to the refusal of the court to grant five prayers tendered by her, and to an instruction given by the court. The first of these prayers is confined, in terms, to the issue joined on the first assignment of breaches replied to the plea of general performance, and asserts that, under that issue, the burden of proof is on the plaintiff, and that he cannot recover under that assignment, because there is no evidence of any breach of the condition of the writing obligatory, as therein averted on the part of the plaintiff. The only question on this prayer, being, whether, under this issue, the burden of proving the prosecution of the injunction with effect, was upon the plaintiff or defendant?

We do not consider the course the pleadings have taken as obnoxious to the objections urged in behalf of the appellant. The plea of general performance, in these cases, denies the plaintiffs’ right to recover, because the principals have performed all the conditions annexed to their obligation, and, for the purpose of giving certainty and precision to the issues, the law requires the plaintiff to assign particularly wherein the condition of the bond has been forfeited, to enable the defendant to plead more specially. In this case the plaintiff has adopted a short form of assigning breaches, which was approved in Karthaus vs. Owings, 2 Gill & Johns., 430. And indeed, this and the other two breaches assigned in reply to the plea of general performance, were before the court on the former appeal, and must have been recognized asa proper mode of pleading, because the rejoinders to these breaches were held bad, on general demurrer, when, if the fault had been in the replication, the court would have ascended to the first error, going beyond the pleading demurred to, as they did in reference to the defendants’ fifth rejoinder. Since that case, the same form of assigning breaches was employed in Frantz vs. Smith, 5 Gill, 280, in an action on an appeal bond, where the court decided that the recital of the judgment in the bond, relieved the plaintiff from the burden of offering the judgment in evidence. It is true that the plaintiff proved that the appeal had not been prosecuted with effect, but no point was presented or decided on that part of the case. It js authority, however, to show that the defendant is estopped from denying the debt as recited in the bond, and that no proof of the judgment was necessary in this case.

The breach being well assigned, we have no doubt that the subsequent pleadings are correctly framed. The termination of the pleading, whether with an averment or to the country, has little to do with the question now under review. When new matter is alleged the party must generally verify; but where the plea produces a direct affirmative or negative, by denying the allegation in the declaration, it should conclude to the country, whether the affirmative of the issue is held by the plaintiff or defendant, and the proof of the affirmative rests on him who asserts it. Union Bank vs. Ridgely, 1 H. & G., 415.

The pleadings in an action of replevin serve to illustrate this rule. The plea of property in the defendant concludes with a verification, the replication asserts the right of property to be, not in the defendant, but in the plaintiff, and tenders an issue to the country, which is accepted. The burden of proof is on the plaintiff, and not on the defendant, although the pleading of the latter concludes with an averment, and that of the plaintiff is merely a traverse. Cullum vs. Bevans, 6 H. & J., 470. 11 G. & J., 80, Warfield vs. Walter. Smith vs. Morgan, 8 Gill, 134. The same principle governs in issues framed on the pleas of no assets, and plene administravit. They conclude with a verification, and the replications conclude to the country, yet, in both, the burden of proof is on the plaintiff, Morgan vs. Slade, 2 H. & J., 38. Wilson vs. Slade, Ibid., 281. It appears then, that the conclusion does not depend on the character of the averment, that is, whether it be affirmative or negative, but on the inquiry, whether the affirmation and denial form an issue. Sometimes, from the nature of the case and the form of the pleadings, in its earlier stages, a party must, of necessity, make a negative averment, with a verification, which can be met only by an affirmation of what is previously denied, with a tender of issue; otherwise an issue might never be reached. Nor, as we have seen, does the conclusion of the pleading determine the onus probandi, for it often happens that a party concluding to the country, takes upon himself this burden, or more properly speaking, the law casts it upon him, in cases where he can conclude in no other way, consistently with established rules, because they must terminate in an issue on his pleadings, and if he holds the affirmative, no matter what the conclusion may be, he must prove what he alleges. Wilson vs. Hodges, 2 East., 312. Colder vs. Rutherford, 3 B. & B., 302.

Applying these rules to the case before us, there appears to be no incongruity in requiring the defendant to support, an allegation in the rejoinder which she has not offered to verify, but has merely tendered an issue to the country. The plaintiff assigned that tire principals did not prosecute with effect, in the language of the condition which they had undertaken to perform, presenting, as was said in 2 Gill & Johns., 441, a prima facie case. The defendant, reaffirming her allegation in the plea, rejoined that they did prosecute with effect, tendering an issue. This conclusion here was necessary, because the negative averment of the plaintiff and the affirmation of the defendant formed an issue which could not be avoided, unless new matter were averred. Can there be a doubt that the affirmative averment is made by the defendant? If so, why may she not be held to proof of the allegation, according to the general rule, that he who holds the affirmative must prove it? We have been referred to exceptions to this rule, (1 Greenlf. on Ev., secs. 78, 80,) but wc think that they do not, embrace this case, and there is no adequate reason for its becoming one. The plaintiff does not ground his right of action upon a negative allegation as an essential element in his case, as in the examples stated by the author. Nor does the negative averment involve a charge of criminal neglect of duty, or fraud, or the wrongful violation of possession of property. This case is not within the principle of any of the exceptions stated. The proof of the fact is not less in the power of the defendant than of (he plaintiff. If it exist at all, it is matter of record, equally accessible to both parties; and of the existence of which as a proceeding in chancery the bond affects the obligors with knowledge. The averment being on the side of (he defendant, as matter in avoidance, equally within her reach, there appears to be quite as much reason for laying this burden on her as on the plaintiff, whereas if it were imposed on the latter, the rule of evidence adverted to would be violated.

But it is said, that a plaintiff should prove his cause of action, and that this party had no standing in court until he had shown damage by a breach of the condition. The extent of his claim is sufficiently established by the judgment recited in the bond. Hardey vs. Coe, 5 Gill, 193. Ibid., 280. As to proof of the breach, it may be observed that a defendant sometimes so shapes his defence as to relieve the plaintiff from showing more than a prima facie case by his pleadings, and the onus of proof may be shifted by the form of the pleadings. So also a parly will, in some cases, be held to the proof of matters, which, but for his having relied upon them in pleading, he need not have established by evidence. As an example, if a defendant, in his plea of non est factum, specially recite the facts on which the defence is based, although concluding to the country, he brings all the proof on himself; whereas by using the general form of that plea, he turns upon the plaintiff the proof of whatever is necessary to make the instrument his deed. Union Bank vs. Ridgely, 1 H. & G., 417. 6 Mod., 218. If the plaintiff had set out the proceedings in chancery in his replication, the burden of proving the ¡breach as assigned would perhaps have been on him, but by using the short form, he leaves the defendant to show by his rejoinder that the obligation has been discharged either by a successful prosecution or by payment of the judgment, thus observing the caution suggested in 2 G. & J., 443, not “ to state matter which would come more properly from the other side.” If the replication in that cause would have had that effect, we do not perceive why the same object may not be attained here. The counsel for the appellant, in this view of the case, contends, that the bond and the recitals show that an injunction had issued, and he asks what has become of that case in chancery, because, as he says, if it be pending the bond could not be sued, and it is in support of this argument that the case in 12 East., 585, was relied on. The doctrine there announced, that things are presumed to continue in a given state until the contrary appears, need not be questioned. The pendency of the proceedings did appear by the plea. But is that the case here? Both parties are estopped from denying that the writ had issued at the dale of the bond, but they are not forever estopped from averring the termination of the suit. If the defendant had, in her plea, relied upon the pendency of the injunction, it, cannot be doubted that the plaintiff would have been bound by the recital in the bond that an injunction had been obtained, unless he had taken issue to the plea and shown by the record that the injunction suit had terminated. But instead of this defence, she pleaded performance of the conditions of the bond, which, in this case, necessarily implied that the suit had terminated, because the condition was, not to obtain an injunction and prosecute it with effect, but so to prosecute the writ already obtained, or pay the debt..

It is not always clear on whom the law places the burden of proof. Rules of evidence must, be applied according to their reason, and the principles of pleading applicable to the case. Both parties here rely on different rules, and we think that, consistently with their correct interpretation, the record shows a prima facie case in behalf of the plaintiff, which casis upon the defendant the proof of her defence as alleged in pleading.

The second prayer relates to the sufficiency of the second and third breaches assigned in the first replication to the plea of performance. It is competent for the court to instruct the jury upon the sufficiency of the pleadings. Berry vs. Harper, 4 Gill & Johns., 467. Warfield vs. Walter, 11 G. & J., 80. Evans' Practice, 408. But the breaches objected to are not, in our opinion, insufficient. They were before the court on the former appeal, and, as we have said, might have been held bad on the decision of the general demurrer if they had been deemed faulty. Besides, we think they are wilhin the principle of the case of Karthaus vs. Owings, 2 Gill & Johns., 446. They aver facts, which, if true, might have been avoided by rejoining matter that should properly come from the other side; that is, the successful prosecution of the injunction.

The third, fourth and fifth prayers, and the instruction of the court to the jury, involve points upon the issue joined, on the plea of non est factum. The counsel agree that this is a bond- under the act of 1723, ch. 8, sec. 5, which provides, “ That in case any person shall think fit to proceed in equity against any verdict or judgment rendered against him, on his application to the county court it shall- and may be lawful for such county court to take sufficient security from such person, with two sufficient sureties, in not less than double the debt and costs recovered- against him, for the due prosecution of a writ of injunction in that case, according to the form following,-” and after setting out the form in the terms of the bond sued on in this case, the act declares, “ that such bond, so given, shall be a sufficient supersedeas and stop to any further proceedings in that case,- until the person against whom such chancery relief is proposed shall obtain- a certificate from the chancellor, or his register, of the disallowance of an injunction in such case, or that such injunction-has not been sued out of the chancery office within two months after such bond given, or if sued out, that the same is dissolved.” It is plain, from the words of this act, that application must be made to the county court, and that the court must approve the bond. But it does not declare what is to be done with the bond when taken and approved, nor is there any provision for recording it. It would seem, however, that it was intended to remain in the clerk’s office, as a “supersedeas to further proceedings in that case.”

We are of opinion that there was testimony applicable to the questions presented by the third and fourth prayers, and that they were properly refused;- but there was error in rejecting the ffth prayer, and also in the instruction given to the jury, that signing, sealing and delivery were sufficient, after having overruled the fifth prayer,-that prayer affirming that acceptance by the court was necessary, because conceding, as contended by the appellee’s counsel, that delivery imported acceptance and approval, that instruction, after the refusal of the fifth prayer, was calculated to impress the jury with the belief, that the efficacy of the bond did not depend upon its approval by the court. We do not say that the instruction as given would have been erroneous if unaccompanied by the action of the court on the fifth prayer, because the opposite party might then, if deemed important, have asked the court to inform the jury what constituted a sufficient delivery in such cases. Atwell vs. Mayhew, 6 Md. Rep., 10. After the court had refused to say that acceptance was necessary, and had decided that signing, sealing and delivery were sufficient, the appellant could not have expected the court, (even if he had asked it,) to have ruled that delivery included acceptance.

Delivery to the clerk does not import acceptance and approval, where, as in this case, these depend on the judgment and discretion of a tribunal or person other than the party named as obligee, whose assent the law does not require. If, however, it be tendered and remains where it should be, if accepted, and parties act under it, it is evidence of acceptance and approval by the proper authority. And this we take to be the reason and principle of the cases cited from 1 H. & G., 430; 1 Md. Rep., 11; 4 Md. Rep., 444. The bond is not required to be recorded; a copy, therefore, would not have been evidence, as was allowed in Young vs. ¡State, 7 G. & J., 253. It was necessary to use the original to prove the factum of the instrument, though the acceptance and approval might depend on other testimony. The attestation clause in such cases is of little importance on the question of delivery and acceptance, because the bond is not delivered to the obligee but tendered to the court for its action, and is not the deed of the party until accepted as sufficient, a matter of which the witness to the bond may have no knowledge. The manner in which acceptance is to be evidenced is not prescribed. It may depend on circumstances: such as the place where the bond is found, the endorsements upon it, and inferences fairly deducible from the facts of the transaction. 7 G. Sp J., 253. It is not our province to express an opinion on the weight of evidence. But from all the testimony applicable to this issue, the jury should be satisfied of the factum of the bond and of its acceptance and approval by the court. Independently of general principles on this subject, we think this is the plain intent of the act under which this bond was-taken. Bruce vs. State, 11 Gill & Johns., 382.

Dissenting from the court below as to the last two rulings in the second exception, we reverse the judgment and order a procedendo.

Judgment reversed and procedendo ordered.