State use of Barber vs. Philip Hammond's Ex'rs, 6 G. & J. 157

Buchanan, Ch. J., delivered the opinion of the court. Christopher L. Gantt, it appears, on the 6th of January, 18 J 9, gave his bond to George and John Barber, with Matthias Hammond, as his surety. Matthias Hammond died, making Rezin Hammond his executor, who in September, 1819, gave a testamentary bond with Philip Hammond as one of his sureties, for the performance of his trust as executor.

On the 21st April, 1823, two suits were docketed, and judgments entered by confession in the Anne Arundel county court, with a stay of execution for three years in each case, in the name of George Barber, surviving obligee oí John Barber; the first in order on the docket against Christopher L. Gantt, the principal obligor in the bond to George and John Barber, and the second for the same debt against Rezin Hammond, executor of Matthias Hammond, who was the surety of Gantt.

These judgments were rendered on the first day of the term, and on the back of the declaration in each case is a memorandum to the clerk in these words; Mr. Green, file this and enter judgment, with a stay of execution for three years.” Signed, J. Shaw, for plaintiff, J. N. Watkins, for defendant, who were both attornies of .that court.

Philip Hammond, who was the surety of Rezin Hammond, in his testamentary bond as the executor of Matthias Hammond,, being dead, this suit is brought upon that bond, against the executors of Philip Hammond, of whom Rezin is one, to recover the amount of the judgment obtained against Rezin as the executor of Matthias.

The two judgments confessed to George Barber, surviving obligee of John Barber, the first by Gantt, on his bond of the 6th of January, 1819, and the second, for the amount of the said bond by Rezin Hammond, as the executor of Matthias Hammond the surety of Gantt, are set out in the bill of exception with the memorandum or direction to the clerk, written on the back of the declaration in each case, by the attornies of the respective parties, (who were the same persons in both cases,) to file the declaration and enter judgment with a stay of execution for three years. There are eight pleas.

To the 6th and 7th there were replications, and demurrers to the replications, which were overruled by the court; and the questions presented by those demurrers not being brought up by the exception taken at the trial, they are not now properly before this court, though attempted to be raised in the argument by the counsel for the appellees. Issues were joined on the three first pleas. To the 4th, 5th, and 8th pleas there are replications, rejoinders and issues, making the 4th, 5th, and 6th issues.

The 4th plea alleges, that the judgment against Rezin Hammond, as the executor of Matthias Hammond, was for a debt due from Gantt, for which Matthias Hammond was only the surety of Gantt, and sets out the judgment against Gantt, with the stay of execution for three years. The replication to that plea alleges, that the stay of execution given to Gantt, was with the consent of Rezin Hammond, as executor of Matthias Hammond, and the rejoinder denies the consent of Rezin Hammond.

The 5th and 8th pleas are substantially the same, and set out and rely upon the judgment against Rezin Hammond, as the executor of Matthias, and the stay of execution entered upon that judgment. The replications to these pleas allege, that the stay of execution given to Rezin Hammond, was with the consent of the appellees as the executors of Philip Hamond, and the rejoinders deny their consent.

The questions then presented to the jury upon the trial of those three issues, were on the first, whether the stay of execution entered upon the judgment against Gantt, was so entered with the consent of Rezin Hammond, as the executor of Matthias; and on the other two, whether the stay of execution entered upon the judgment against Rezin Hammond, as the executor of Matthias, was so entered with the consent of the appellees as executors of Philip Hammond.

The entry of the stay of execution on the judgment against Gantt, was a giving of time to him, which if done in the life-time of Matthias Hammond, his surety, without his knowledge and consent, would have operated as a discharge of Matthias; and being done after his death, if without the knowledge and consent of Rezin Hammond, his executor, it equally discharges Rezin, and consequently Philip Hammond, his surety in his testamentary bond, if living, and being dead, his executors as such, the appellees in this case.

It was necessary therefore, for the appellant to sustain the 4th issue on his part, that is, that the time given to Gantt, by the entry on the docket of a stay of execution for three years.upon the judgment against him, was with the consent of Rezin Hammond, as the executor of Matthias.

To prove such assent, and whether the jury was at liberty to infer it or not, from the evidence in the record, was the question submitted to the court at the trial; and is the only question presented to us by the bill of exception : the prayer preferred to the court by the appellant’s counsel being, for its instruction to the jury, that from the facts stated, they might infer the consent of Rezin Hammond, to the stay being given to Gantt, as stated in the replication. Not that they were bound to infer the consent of llezin Hammond, but might infer it.

That is, that the jury might, or might not infer it, from the evidence submitted to them as the judges of the effect of that evidence;— which instruction the court refused to give.

The appellant had a right to have the jury instructed with reference to their proper sphere of action; to have them told what was legitimately within their province, as the triers of the issue submitted for their decision, and that is, what was asked; that they might understand their duty and know that they were at liberty to infer from the evidence before them, the fact that was put in issue, if they should be of opinion, that the evidence was such as to afford the just and rational inference of that fact: and we think that the court erred in refusing to give the instruction asked for.

The consent of Regin Hammond to the stay being given to Gantt, as alleged in the replication, was as competent to be proved by circumstantial, as by positive evidence. The same in that particular, as any thing else that may be proved by circumstantial testimony.

The circumstances relied upon for that purpose in this case, that the suits and judgments against Gantt and Resin Hammond, as the exeecutor of Matthias, the surety of Gantt, and the stay of execution entered upon each judgment were on the same day — that they were amicable proceedings — that they were in the same court, and for the same cause of action — that they stand together upon the docket, the latter immediately following the former in order — that the stay of execution in each case is for the same time — that the judgments were voluntarily confessed, and at the first term — that the attorney for Gantt, and the attorney for Hammond was the same person — that the gentleman who was the attorney for the appellant in the suit against Gantt, was also the appellant’s attorney in the suit against Hammond: and that the order to the clerk written and signed by them, as the attornies for the respective parties, on the declaration in each ease, to file it and enter judgment with a slay of execution for three years is in the same words, as they tend to show a conventional arrangement between the parties, the result of their relative condition in respect to the cause of action, consummated through the agency of their respective attornies, who were the same in both cases, and must be presumed to have known the views of their respective clients, and to have done their duty towards them, were circumstances pertinent to, and tending to prove the issue on the part of the appellant, from which the jury, whose province, it was to weigh and balance the testimony, should have been left to infer, or not, the consent of Hammond to the stay of execution being given to Gantt, according as their judgment might direct.

If instead of an unqualified refusal to give the instruction prayed, which may have misled the jury, and induced the belief that they were not at liberty to infer the consent of Hammond, the court had informed them, that the whole case was before them upon the evidence, which it was for them to weigh, and that they might infer the consent of Hammond, or not, as they might, or might not believe such inference to be warranted by the evidence, or had instructed them in any form not calculated to mislead them one way or the other,, but leaving them free and at large to weigh the testimony, and to make such inferences from it as they should believe it to warrant, such a direction would have been free from objection.

But it seems to us that the unqualified refusal, in the presence and hearing of the jury, of the instruction asked for, if not equivalent to a direction that they were not at liberty to infer the consent of Hammond, or that the evidence was not of a character to justify that inference, was at least calculated to make one or the other impression upon their minds, and thus to mislead them.

It has been urged that as the finding of the jury, on the 5th and 8th issues, was in favor of the appellees, the judgment ought not to be reversed, and the case sent back undqr a procedendo, even although the court erred in refusing to give the particular direction prayed, on the supposed ground, that the appellant cannot on another trial succeed against the defence relied upon in those issues, and therefore that he could gain nothing by the case being sent back, and would only be subjected to the costs of another trial.

But we are not prepared to say from the state of the case as presented to us, that such would be the consequence. JUDGMENT REVERSED AND PROCEDENDO AWARDED.