Clarissa Gardiner and William F. Bowling vs. Richard B. Hardey and Edward Simms, 12 G. & J. 365

Dorsey, J., delivered the opinion of this court. Against the making the injunction, perpetual, to the judgments against the appellants as administrators of Richard B. Gardiner, each to be released on the payment of $419.66, &c., or to the granting a new trial in the cases in which they were rendered, the testimony of Richard B.

Hardey has been relied on by the appellee, Simms, who insists, that thereby the whole equity of the bill is disproved, and that substantial justice appearing to have been administered to the parties by the rendition of the judgments complained of, the complainants are entitled to relief, neither in the specific mode in which they have sought it by their bill, nor in that in which it has been claimed for them in the argument before this court. But to the admissibility of this testimony, exceptions have been taken, any one of which, if sustained, must exclude it from the consideration of this court.

The exception mainly urged, was, that being a party to the suit, his testimony was taken before a commissioner without a previous order of the court for that purpose. In answer to which it has been insisted in behalf of the appellees, that the exceptions filed to the admissibility of Hartley's testimony do not present the point or ground of objection now asserted in this court, and that under the act of 1832, ch. 302, and the decisions of this court, it must affirmatively appear, that the point raised in the Court of Appeals was the point presented to the consideration of the court below, and by it decided.

Conceding this doctrine to the fullest extent to which it can reasonably be carried, we think the exception-filed below does with sufficient precision present the very points now raised before us.

The appellants excepted to the competency of Hardey as a witness, upon three several grounds — 1st, “because he is interested in the event of the suit. 2ndly, because he is one of the defendants in the suit. 3rdly, because he was the legal plaintiff in the cause.” Looking at the three exceptions in connection, what point can it rationally be conceived is raised by the second, unless it be that now urged before this court?

But whether it be so or not is wholly immaterial, this court having, on more than one occasion, decided, that on an objection to testimony, the point decided by the court is its admissibility or inadmissibility, not the sufficiency or insufficiency of the reasons assigned for its rejection. The exception, therefore, we think sufficiently pointed, and that the testimony to which it is addressed is excluded by it. Seethe case of Jones vs. Hardesty and al, 10 G. & J. 414.

On the part of the appellees it is insisted, that the rejection of the testimony taken under the commission issued for that purpose, cannot operate to their prejudice, or in the slightest degree influence the results to which the court must have arrived, had the testimony been rescued from the objections made to its-reception. That the same grounds against perpetuating the injunction or granting a new trial at law, are established by the answers of the appellees, as the entire record would have-presented, had no exceptions been taken to the testimony.

Without stopping to moot the question, how far the answer of a co-defendant, the legal plaintiff in a cause, who has no interest in the subject matter in controversy, can be relied on as evidence for his co-defendant, the real party in interest in the cause, let us see whether the statements in the answers here pressed into that service, are admissible as evidence to rebut the complainant’s equity, as it appears upon the bill, exhibits, and admissions in the answers. The statements alluded to are those given in explanation and avoidance of the receipt of Hardey, exhibited with the bill.

The question turns entirely upon the inquiry, whether they are responsive to the allegations or interrogatories contained in the bill of complaint. By its allegations, it has not been pretended that these disclosures were responsively drawn from the appellees. But it is alleged, that they were responsive to the interrogatories propounded to Richard B. Hardey alone.

Upon a careful examination of those interrogatories, we are clearly of opinion, that the statements in the answers relied on as a bar to the complainant’s equity, are not responsive to the bill, but matters of defence, set up in avoidance of the receipt, the ground work of the complainant’s claim to relief. The bill asserts, that the receipt, as upon its face, it strongly purports, but does not conclusively shew, was given for the same cause of action on which the judgments were rendered.

And the interrogatory inquires whether he executed the receipt? “and whether said receipt did not include the balance appearing due of four hundred and nineteen dollars and sixty-six cents, and for which he has obtained judgments” against the appellants? To both of which inquiries he answered distinctly and fully in the affirmative; and then, as matter in defence, and in avoidance of the receipt, proceeded to state a variety of facts, none of which were charged in the bill, and in relation whereto he had not been interrogated.

Had the interrogatory called on him to state whether he had not been paid the $419.66, for which the receipt had been given, the door would have been opened to the disclosures he made, and they might well be regarded as impairing the weight attached to the receipt. But not being responsive to the bill, nor sustained by the proof, at the final hearing of the cause, they are entitled to no consideration.

The obstacles alleged to be interposed by the proof and answers to the relief prayed, having been removed, let us examine the next defence which has been set up by the appellees, to wit, that the bill itself does not disclose a case in which it is competent for a court of equity to give any relief. We will first consider this proposition in reference to the judgment complained of, which has been obtained against Clarissa Gar-diner.

The ground upon which her right to relief is denied, is, that she was guilty of such negligence, in not pleading in bar to the judgment recovered, the evidence she now relies on to show that it ought never to have been rendered against her; that a court of equity can give her no aid in avoiding its payment. It is apparent from the record, that at the time she states her discovery of the receipt to her intestate, it was too late, by a motion for a new trial or otherwise, to have made it available, at law, as a defence to the claim for which judgment had been rendered against her.

It must also be conceded, that her denial on oath of all previous knowledge of the existence of the receipt, with her statement of the time and manner in which she discovered it, she being the custodiary of the papers of her deceased husband, must, in the absence of all proof impeaching their verity, be received by the court as evidence in the cause, and be weighed in connection with all the other facts established by the bill, answers and exhibits, in forming an opinion upon the appellant, Clarissa,s claim, to the relief she seeks.

If she has not forfeited all claim to the favor of a court of equity, and the testimony of Hardey, and the portions of the answers deemed not responsive to the bill, be excluded, it appears to be conceded, that Mrs. Gardiner would be entitled to the interposition of a court of equity-in her behalf.

But it is said, that her statement that her husband had informed her that he had settled the claim of Hardey, and her not looking amongst his papers for the receipt, as the evidence of such settlement, before the judgment was rendered, are such acts of negligence, as will deprive her of all favor in the eyes of the Court of Chancery. We do not regard her conduct, under the circumstances of this case, as forfeiting all claim to such favor.

It must be remembered, that she was a woman not presumed to have much .acquaintance with the nature of the business in which she was engaged; that she was associated in the administration with a man in whom she had confidence, to whom she confided all the papers of the deceased, and in whose ability properly to administer the assets of the deceased, it is fair to presume, she reposed confidence. The existence of any receipt had never been communicated to her by her husband, or any one else. The claim had been sworn to by Mr.

Hardey, a minister of the Gospel, and passed by the orphans court of her county, upon the records of which, in all probability, it appears from the guardian’s accounts, settled by Richard B. Gardiner himself, that the sum claimed was due by him, and that he had never there claimed or been allowed a credit for its payment.

In addition to this, the co-administrator, mainly relied on by her in the settlement of the intestate’s estate, who was in possession of all his papers, and who the wddow had a right to presume had unsuccessfully searched for the evidence of the payment of this claim, had long before confessed judgment for its amount. Would not the instance be rare indeed, where a widow, administratrix, similarly situated, would have pursued a different course from that to which Mrs. Gardiner reluctantly yielded?

Can we then, consistently with that liberality and justice which always control the decisions of a court of equity, say, that she has been guilty of such negligence, in not defeating at law the judgment which has been rendered; that the doors of a court of equity are forever closed against her, when apart from the imputation of neglect, as far as the proceedings before us permit us to look, she appeals to such a court to give her an opportunity of discharging herself, by a trial at law, from a claim which, as far as the proceedings before us will enable us to look, appears by an admitted receipt in full, to have been satisfied and paid nearly fifteen years ago.

Thus, to place her beyond the pale of equitable relief in a case of such apparent injustice and hardship, would, we think, under the circumstances of this case, be inconsistent with the enlightened and liberal principles by which courts of equity are governed. So far from exhibiting that negligence and inattention to her duty as administratrix, which have been imputed to her, she appears to have yielded to the strong array of circumstances against her, and her utter ignorance of the existence of that receipt, by which only the claim could have been successfully resisted.

Even after the judgment, her suspicions do not appear to have slept. She called on Simms to obtain all the information she could upon the subject; and when, subsequently, her suspicions of foul play were increased by Simms’ refusing to credit the payments she made to the judgment, to which she directed their application; as a last resource, a forlorn hope, she determined herself to search the papers in the hands of her co-administrator, and on that examination, the discovery of the receipt took place.

One administrator, in no wise assenting thereto, is not liable for the consequences of the negligence or misconduct of a co-administrator. And it would, in this case, be rather a severe measure of justice to visit on Mrs. Gardiner the results which should attach to the delinquency of Bowling. We are, therefore, of opinion, that Mrs. Gardiner is entitled to have the judgment of which she complains stricken out, and her case brought up by regular continuances to the ensuing term of Charles county court, where the case is to be tried as if no judgment therein hadever been rendered.

Having expressed this opinion as to the judgment rendered against Clarissa Gardiner., it follows as a necessary consequence, that the judgment against William F. Bowling must share the same fate; both judgments being rendered in a joint action against the two defendants, the same judgment must be rendered against both. The judgment against Bowling must, in like manner, be stricken out, and the case brought up by continuances, and both cases be consolidated and tried. As respects the payments made to Edward Simms by Mrs.

Gardiner, since the rendition of the judgments against her, this court will, of course, direct them to be altogether credited on the judgments rendered against the appellants on the note of the intestate for $1,815. DECREE REVERSED WITHOUT COSTS.