Butler v. State ex rel. Contee , 5 G. & J. 511 ( 1833 )

Dorsey, J.,

delivered the opinion of the court.

The court below could not have done otherwise, since the act of assembly of 1825, than reject the appellant’s prayer, in their first bill of exceptions; it being a general prayer, that the plaintiff was not entitled to recover. But having proceeded at some length to express their opinion, upon the effect of producing a certified copy of the bond, on the prayer of oyer by the appellants, it is alleged that the plaintiff, in his declaration, having made profert of the original bond, he is therefore bound to produce it, on the prayer of oyer, and on the trial of non est factum,and that the court erred in not so instructing the jury. To sustain this objection, 1 Chitty Pl. 350. 2 Stark. Ev. 475, and Smith and others vs. Woodward, 4 East. 585, have been referred to. These authorities are not applicable to the case at bar. There the plaintiffs were hound to have made profert of the original bonds; and having done so, the original bonds, from the time of the profert, are presumed to remain in court subject to the prayer of oyer\ and must be forthcoming at the trial of the issue of non est factum. But here, the original bond being filed with the clerk of Prince George’s county court, there to remain and become a public iccord, could not in legal contemplation be in the possession of the plaintiff, or be the subject of a profert. The mere fact cf profert therefore, imposes on the plaintiff no obligation to produce the original bond, either upon oyer craved, or upon the trial of the general issue. Upon the latter issue, his obligation to do so is equally imperative, with, or without profert. It is indeed an unnecessary nugatory offer on his part, which is to be rejected, as surplussage. 1 Chit. Pl 314, and the cases there referred to.

A second objection has been raised to the opinion of the court below, because they instructed the jury, that the question for their decision was, “whether the defendants executed a bond of the same legal effect and operation, with that so spread upon the record.” And this objection we think well founded. .

The legal effect and operation of the bond was matter of law to be decided by the court; not of fact, to be found by the jury. It was their province to find whether the bond declared on, was in point of fact executed by the defendants. Its legal efficacy was matter of construction to be left for the court to pronounce. The same objection is taken to the court’s instruction in the second bill of exceptions, and we sustain it for the same reason.

The third bill of exceptions is waived by the appellants.

The county court was right in rejecting the testimony offered by the defendants in their fourth bill of exceptions.

The question on which it was offered, was not open for consideration by the jury. It was adjudicated by the county court, as a court of equity, in their peremptory order on E. M. Dorsey the trustee, to pay over to the real plaintiffs in this action, the sum of money stated by the audit then confirmed, to be due them; and for the recovery of which the present action was instituted. To have admitted the testimony would have bee.n to constitute the jury an appellate tribunal to reverse the order or decree of the county court long antecedently, solemnly, and judicially pronounced, when sitting as a court of equity. It was correctly said therefore by the learned judge, who tried this case, “that the proof so offered was not within the issue.”

The condition of the bond given by the defendants is, “that E. M. Dorsey, as trustee as aforesaid, do, and shall well and truly perform the duties required by said decree, or which may be required by any future decree, or order in the premises.” The breach assigned, is the non payment as directed by the order of the county court. After the issue of non est factum had been found for the plaintiff, the only questions open to the jury of inquest, were, did the court pass such order ? Had payment been made conformably thereto?

The justice and legality of the order, could not have been a subject of enquiry, in the trial of this cause in the court below. They were questions not examinable, when thus indirectly and collaterally presented ; but could only be re-examined, and re-adjudicated, by a direct appeal from such order to this court; or on a rehearing, or bill of review, before the same tribunal by which the order was passed. This is not the common place order of a court of equity, ratifying the auditors statement, or the report of sales by a trustee, whereby, “the trustee is directed to apply the proceeds accordingly,” (which order only binds the trustee to pay, when the proceeds of sale are by him received,) but it is an absolute order to pay; and in effect, an adjudication of the court, that the trustee has that amount of the proceeds of sales in his hands, applicable to the payment of that order.

We concur with the county court on the fourth exception, but dissenting from them in the first and second bills of exceptions, we reverse their judgment.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.