Boteler v. State ex rel. Chew

delivered the opinion of the court.

The 'suit is upon a bond of Edwin M. Dorsey to the State, with the appellants as his sureties, as a trustee appointed by a decree of Prince George’s county court, to sell certain real estate, the property of Walter B. Brooke, for the payment of a mortgage debt to Lucy S. Brooke in the recital mentioned. The condition of which bond, is for the performance by the trustee of the duties required by that decree, or by any future decree, or order in the premises.

All the exceptions taken at the trial below being abandoned by the counsel for the appellants except the first, and (it is enough for us here to say, as we think) properly, there remain but three questions to be considered. The replication to the plea of general performance, assigns as a breach of the condition of the bond, the non-payment by Edwin M. Dorsey *380of the sum of $932.54| to the creditors of Henry M. Chew & Co. which it is stated he was directed to pay to them, by an order of the county court of Prince George’s as a court of equity, of the 17th of April, 1832, made in the case in which he was appointed trustee, as by the record of the proceeding in that case (as is alleged) now remaining in that court will appear. To this, there is in the rejoinder a plea of nul tiel record, on which issue was joined — and to support the issue on the part of the plaintiff below,- certain papers, purporting to be the original papers and proceedings in equity, in Prince George’s county court, mentioned in the replication, in which Edwin M. Dorsey was appointed trustee, were produced and offered in evidence to the court. The admissibility of these papers was objected to, but being admitted by the court on inspection, without other proof of their identity, as the original papers, stated in the replication to be of record in the Prince George’s county court, and without the production of a record, or 'transcript of a record of the proceedings; and the issue that they were produced to sustain, evidence in favour of the plaintiff below, the bill of exception now under consideration was taken ; which presents two questions:—

1. Whether the production of a record or transcript of a record of the proceedings, was not necessary to maintain the issue on the part of the plaintiff below) and the original papers, without such record or transcript • inadmissible for that purpose?

2. Whether, if the original papers alone were admissible, and sufficient for that purpose, the papers produced should not have been proved to be the original papers in the cause referred to in the replication, otherwise than by inspection by the court. Which will be considered together. The rule as laid down in treatises upon evidence is, that when the existence of a record of a court is put in issue on the plea of nul tiel record in proceedings of the same court, it should be proved by the production of the record itself, for inspection by the judges ; and that when the record denied by the issue *381is of another court, it is to be proved by the production of an exemplification of it.

Before the act of 1817, ch. 117, it was the duty of the clerks and registers of the courts of justice of this state, to record the judgments, &c. of their respective courts, not as in England by engrossing them upon the parchment and delivering them into court, as the permanent rolls of the court, but by transcribing them into books to be kept in their respective offices for that purpose, from the minutes of the court, the docket entries, and the original papers and documents filed in the cause. Which duty was greatly neglected; and exemplifications when required, commonly made out, not of records technically, but from the docket entries, minutes of the court, &c. and it has been the practice of the courts of this state, to decide an issue on the plea of nul tiel record of the same court, not by inspection of a record actually made up, and produced, but on an inspection of the docket entries, minutes of the court proceedings, original papers, &c. on file in the cause, the judgment or decree in which, is put in issue; treating them as the record of the court — which practice we are not disposed to disturb ; not perceiving any sufficient reason why the original proceedings, papers, See. on file, should not be deemed of as high credit, as a transcript from the record books made out by the clerk from the same materials ; nor why the issue on the plea of nul tiel record, may not as well be tried and decided on inspection of them by the court, considered and treated as the record, as on an inspection of a record, made out from them in a book by the clerk, who is not supposed more capable to examine, or more critical and exact, in his examination than the judges.

The technical objection, that the existence of a record should be proved by the production of the record itself, as the best and highest evidence being removed, by considering and treating the original proceedings, &c. as the record, and in Burch and others vs. Scott, 1 Gill and John. 397, it was held by this court, that a decree of the court of chancery is to be considered and taken as enrolled, when it is signed *382by the chancellor, and filed by the register, and the term has elapsed during which it was made.

The proceedings and orders referred to in the replication, as of record in the Prince George’s county court, were had, and made in that court, sitting in equity, and the orders being signed by the court, and filed by the clerk, and pleaded after the lapse of several terms of the court, are in conformity to the decision in Burch and others vs. Scott, to be taken and considered as enrolled.

The 7th section of the act of 1817, makes it the duty of the clerks and registers of the courts of justice in the state, to make up at full length in well bound books the records of all the judgments,- decrees, proceedings, &c. of their respective courts in cases of the character designated, within twelve months after the time, when such judgments, decrees, and proceedings, shall be rendered, made, or had: not to give validity to such judgments,- &c. but for security, and to furnish the ready and convenient means of evidence in other courts; which as relates to the proceedings in question, which are of the character mentioned in the 7th section of that act, was not done, and as appears by the evidence had not been done, at the time of the trial of this cause below. But they were on the files of the Prince George’s county court at the time of filing the replication, though afterwards transmitted to the ^court of chancery, under the act of 1831, ch. 309, authorizing the proceedings in suits in equity, in any of the county courts of the first judicial district, to be transmitted to that court, and taken from thence, and produced to the Prince George’s county court, on the trial in this cause, of the issue joined on the plea of nul tiel record.

It does not appear that they were ever recorded in the chancery court, or that any proceedings were had, or decree made in that court, to require or authorize the recording of them there. They were there, as proceedings had in the Prince' George’s county court, with authority only to the chancellor, given by the. act under which they were transmitted, to. act upon them as if they had originated in the *383court of chancery; with no action of the chancellor upon them as far as appears. They could not therefore, for any thing appearing, have been properly pleaded as a record of the court of chancery. And if they had been, the production of them would not have sustained the plea being in fact proceedings in another court.

The clerk having neglected to do his duly, they were the best and only evidence that could have been offered; and when produced to the Prince George’s county court, that court was authorized and competent, by inspection, to ascertain and determine, whether they were the genuine original papers and proceedings of that court, stated and referred to in the replication. And having done so, being on the files of that court at the time the replication was put in, (which is not denied,) it did right in considering and treating them as the proceedings and records of that court, for the purposes of the issue before it, notwithstanding they had been transmitted to the court of chancery.

The remaining question arises on the general demurrers to the 2d and 6th rejoinders, both of which are admitted by the counsel for the appellants to be immaterial and bad ; but the demurrers reach back through the whole record, and attach to the first substantial defect in the pleadings, which is found to be in the replication.

Edwin M. Dorsey was appointed by the Prince George’s county court sitting in chancery, a trustee to sell the real estate of Walter B. Brooke for the payment of a mortgage debt to Lucy S. Brooke, and gave his bond, with condition for the performance of the duties required by that decree, or by any future decree or order in the premises; and having sold the property, an order was passed by that court, directing the auditor to state an account, between the mortgaged premises and the trustee, distributing the proceeds among the creditors of Walter B. Brooke as therein directed. In pursuance of which order, the auditor stated and reported an account, charging among others, a debt as due to the creditors of Henry M. Chew & Co. without naming them or stating the *384amount due to either of them, which account so stated, was ratified and confirmed by the court, by an order directing Edwin M. Dorsey, “ the trustee, to pay over to the creditors of Henry M. Chew & Co.” without naming them, the amount so charged in the account as due to them, For the recovery of which the suit was brought: and the breach assigned in the replication is, the non-payment to the creditors of Henry M. ■Chew <Sf Co. without naming them, or any, or either of them, of the amount so charged in the auditor’s account, and by the order of the court directed to be paid by the trustee.

The executing the bond by Dorsey, the trustee, and his sureties, gave no cause of action; that, could only arise from a breach of the condition for which no person is authorized to put the bond in suit, but one entitled to the fund, or a portion of it. The state has no interest in it, and he at whose instance a suit is brought in the name of the state, being the real plaintiff, should set out and disclose his name in the pleadings, that his title and right to sue may appear; and an opportunity of meeting and resisting his claim be fairly afforded to the defendant, which is not done in this case. Who are the creditors of Henry M. Chew & Co. or to what proportion of the sum charged to be due to them, they are respectively entitled does not appear, either in the auditor’s report, the order of the court ratifying and confirming that report, and directing the amount to be paid over to them by the trustee, or in the replication assigning as a breach of the condition of the bond, the non-payment of it; but they are merely styled in each, the creditors of Henry M. Chew & Co. who it appears had obtained a judgment against Walter B. Brooke.

To whom, claiming as a creditor of Henry M. Chew & Co. .was the trustee to make payment, and to what amount? The replication does not state. The auditor in his account should have set out the proper names of the creditors of Henry M. Chew & Co. interested in the fund in the hands of the trustee, stating the amount to which each was entitled.

*385And there appearing to be many separate creditors, claiming different amounts, and the judgment mentioned in the account, being entered generally for their use, the replication supposing them to be competent to institute a joint suit on the bond in the name of the State, should have done the same thing, showing who were the real plaintiffs, their right to sue, and the amount to which they were respectively entitled; that the defendants, so advised, might frame their defence accordingly, and prepare themselves to show according as the fact might be, that they were not the creditors of Henry M. Chew & Co. and not entitled to sue the bond, or that they had been paid pursuant to the order of the court. In an action, not upon the bond, but upon the order of the Prince George’s county court, for the amount stated in the auditor’s account, to be due to the creditors of Henry M. Chew & Co. if any action could be sustained on that order, a description of the plaintiffs in the declaration as “ the creditors of Henry M. Chew & Co.” without setting out their proper names, would clearly be insufficient — and if so, on what principle in an action on the bond, can a like, description in the replication assigning breaches, be deemed good. In declarations, replications, and other pleadings, on the part of the plaintiffs, “ certainty to a certain intent in general,” as it is termed, is required, as well in relation to the parties as the subject matter, that the defendant, in the event of a judgment being rendered against him, may be enabled to plead it in bar of any subsequent action for the same cause — which could not be the case here, for the want of a sufficient description of the plaintiff in the replication. A judgment rendered against the defendants on this replication.would be no bar to an action subsequently brought in the name of the State, on the same bond for the same cause, at the instance of persons stating themselves to be the creditors of Henry M. Chew §- Co. and setting out their proper names in the replication; as it would not appear, from a comparison of the two replications, that they and the persons suing in this cause, whose names are not disclosed, were the same, nor *386could their rights be affected, by a judgment in favour of unknown persons, styling themselves the creditors of Henry M. Chew & Co. without further description, in a suit to which they did not appear to have been parties, and thus the defendants might be made to pay the same sum twice.

We think, therefore, that the court below erred in sustaining the demurrers.

The auditor’s account is improperly stated, and in our opinion, the order ratifying and confirming it, was improvidently made.

The judgment must be reversed with costs.

JUDOMENT REVERSED.