Ferguson v. Harwood

• Citation: 3 L.Ed. 386,11 U.S. 408,7 Cranch 408
• Parties: FERGUSON v. HARWOOD
• Decision Date: 24 February 1813
• Court: United States Supreme Court

11 U.S. 408

7 Cranch 408

3 L.Ed. 386

FERGUSON v. HARWOOD.

February 24, 1813

Absent. TODD, J.

ERROR to the Circuit Court for the district of Columbia, sitting at Washington, in an action of assumpsit, brought by Harwood against Ferguson, to recover the value of three hogsheads of tobacco, upon the following agreement, (after describing the hogsheads by their numbers, marks and weights) viz.

'Upper Marlborough, June 16th, 1808.

Received of Walter W. Harwood, as one of the administrators of William Eversfield Berry, deceased, in part of my claim against said estate, the three hogsheads of crop tobacco as above stated, to be allowed p. ct. the highest six month's credit price at this place during that time after the rescinding of the embargo. I have put into the hands of the aforesaid Walter W. Harwood a bond of conveyance given by Elisha Berry to his son, William E. Berry, dated March 14th, 1798, for the purpose of recovering the property therem mentioned now depending in a suit in Prince George's county Court. If the property is not recovered in the aforesaid bond of conveyance. I hereby bind myself, my heirs, executors and administrators to return the above three hogsheads of tobacco, with legal interest, or the value thereof in money, to the aforesaid Walter W. Harwood, or to his heirs or assigns.

(Signed) ENOS D. FERGUSON.'- Upon this agreement the Plaintiff declared that whereas the said Walter, as one of the administrators, &c. on _____ at _____ delivered to the said Enos in part of his claim, &c. three hogsheads of crop tobacco, (describing them) he, the said Enos to be allowed per cent. therefor the highest six month's credit price, &c. And whereas also the said Enos at _____ on _____ put into the hands of the aforesaid Walter, a bond of conveyance, &c. for the purpose of enabling the said Walter to recover, and of recovering the property in the said bond mentioned, a suit for the recovery whereof was then depending in the county Court of Prince George's county, in the state of Maryland, the said Enos then and there in consideration of the premises and the delivery of the three hogsheads of tobacco as aforesaid, promised and undertook and bound himself, his heirs, executors and administrators to return the three hogsheads of tobacco aforesaid with legal interest, or the value thereof in money, to the aforesaid Walter or to his heirs or assigns, if the property in the aforesaid bond of conveyance mentioned was not recovered in the suit then as aforesaid depending for the recovery thereof; and the said Walter avers that the property in the said bond mentioned was not recovered from the said Elisha Berry in the suit so as aforesaid depending for the recovery thereof, but that judgment was given for and in favor of the said Elisha in said suit, whereof, and of all which premises, the said Enos afterwards had notice, whereby he became liable, to return the said tobacco with legal interest or to pay the value thereof in current money of the United States, which value the said Walter avers to be 180 dollars, whereof the said Enos had notice, &c.

There was also a count in the declaration for money had and received.

Upon the trial of the general issue the Defendant, Ferguson, took three bills of exceptions.

The first bill of exceptions was to the admission in evidence of an exemplification of the record of a suit in Prince George's county Court, which was certified as follows:

I hereby certify that the aforegoing is truly taken from the record of proceedings of Prince George's county Court, and in testimony thereof I do hereto subscribe my name and affix the seal of the said county Court, this third day of January, in the year of our Lord one thousand eight hundred and eleven.

JOHN READ MAGRUDER, Jr. Clk.'

The seal of the county Court was annexed with the regular certificate of the chief judge of the Court that the attestation of the clerk was in due form of law.

The objection to this exemplification was that it did not appear by the certificate of the clerk to be a full copy of the record of all the proceedings in the case. The practice of the clerk of the Circuit Court for the county of Washington, in the district of Columbia, was to certify that the 'foregoing is truly taken and copied from the proceedings,' &c.

The second bill of exceptions stated that the Plaintiff having read to the jury the evidence mentioned in the first bill of exceptions, and which had been permitted by the Court to be read, the Defendant offered to read a copy of the docket entries of Prince George's county Court, which the clerk had also certified to be truly taken from the proceedings of that Court. To this certificate was annexed the seal of the Court and a certificate by the chief judge of the Court that the attestation of the clerk was in due form of law.

The third bill of exceptions stated that after the Plaintiff had read the agreement to the jury, the Defendant objected to its admissibility in evidence upon the first count in the declaration, because it varied from the agreement set forth in that count. But the Court was divided in opinion and the agreement was read.

The verdict and judgment were for the Plaintiff, whereupon the Defendant brought his writ of error.

F. S. KEY, for the Plaintiff in error, contended,

1. That the record of Prince George's county Court ought not to have been admitted as evidence in this cause, because the clerk of that Court had not certified it to be a full record of all the proceedings in the case nor even that it was a copy of any thing, but had merely stated that 'the foregoing was truly taken from the record of proceedings in that Court.

2. That the Court ought to have admitted the copy of the docket entries of Prince George's county Court to be read in evidence, because they were certified by the clerk in the same manner to be 'truly taken' from the same proceedings.

3. That the Court ought not to have admitted the agreement in evidence to support the first count in the declaration, because it varied from the agreement set forth in that count, in the following particulars: 1. The agreement produced in evidence states that the Defendant in error, Harwood, should be allowed the highest credit price, &c. for the tobacco, whereas the agreement set forth in the count, is that the Plaintiff in error, Ferguson, should be allowed the highest credit price, &c. for the tobacco: and 2. The agreement produced in evidence states that the Plaintiff in error was to return the tobacco if the property should not be recovered 'in the aforesaid bond of conveyance.' But the count charges that the Plaintiff in error, Ferguson, agreed to return the tobacco if the property, in the bond of conveyance mentioned, should not be recovered in the suit then pending for the recovery thereof.

In support of this bill of exceptions, he cited the following cases: 1 T. R. 240. 2 Bos. and Pull. 116. 4 T. R. 560. 2 East, 2 and 450.

J. LAW, for the Defendant in error.

On the first exception, cited 2 Harris's Entries, 221, 227 and 263, to show that the clerk's certificate annexed to the transcript of the record of Prince George's county Court, was in due form, according to the practice of the Courts in Maryland.

On the second exception, he cited Peake's Law of Evidence, 34, 55 and 66,...