Spiker v. Nydegger

• Decision Date: 11 March 1869
• Citation: 30 Md. 315
• Parties: ROGER P. SPIKER v. LEWIS NYDEGGER.
• Court: Maryland Court of Appeals

30 Md. 315

ROGER P. SPIKER v. LEWIS NYDEGGER.

Court of Appeals of Maryland

March 11, 1869

APPEAL from the Circuit Court for Allegany County.

This was an action of assumpsit brought by the appellee to recover from the appellant certain money alleged to have been collected by him, as constable, on claims placed in his hands by one Christian Nydegger. Christian Nydegger and William F. Nydegger, held as payees different notes, for different sums of money due from various parties; on the 16th of April, 1858, Christian, for himself, and as agent of William, delivered these notes for collection according to law, to the appellant, who was then a constable in Allegany county. On these notes the appellant brought suits before Singleton L. Townshend, a Justice of the Peace, and recovered judgments thereon.

On the 5th of June, 1863, Christian Nydegger, for himself, and as agent of William, by his writing on the backs of true copies of these judgments, certified under the hand and seal of Justice Townshend, assigned for value received, all their interest in said judgments or claims, and the interests costs, &c., due thereon, to the appellee. The declaration contained a special count, and a count for money had and received. The defendant first pleaded ""payment," and "not indebted;" he afterwards filed the following additional pleas:

1st. That he never promised as alleged. 2d. That the claims were not assigned as alleged. 3d. That he was not constable as alleged. 4th. Limitations. 5th. That the various debtors were insolvent, and that none of the moneys could be collected 6th. That he never received the claims nor collected the money. 7th. Payment.

At the trial below, the following exceptions were taken by the defendant:

First Exception.--The plaintiff offered in evidence sundry original judgments, which had been recovered on notes placed in the hands of the defendant for collection, by Christian Nydegger; these judgments appeared on the docket of Singleton H. Townshend, a former Justice of the Peace, the same having been returned to the clerk of the county by said Townshend, on the expiration of his term of office. The executions on four of said judgments were not produced at the trial; and the defendant proved by a deputy clerk that he had carefully examined the papers and executions returned by Townshend, to the clerk's office of the county, and had not been able to find amongst said papers and executions, any execution or executions issued on said four judgments, or either of them, and that he was satisfied that no such executions were to be found in the clerk's office; the defendant also proved by Townshend, that on the expiration of his term of office, he returned to the clerk of the county all papers, executions, &c., in his hands as a justice of the peace, at that time; but that he had no recollection of having returned the executions on these particular judgments. The plaintiff then offered to prove by said Townshend, that the entry "made and satisfied" on his docket, in each of said four judgments, was made by him from the return by the defendant, endorsed on each of said unproduced executions, or from his order, and that he knew they must have been so made, or they would not be found there, and that the defendant generally made his returns by reading them off to the witness, who entered them on his docket as he read them off; the witness on cross-examination further stated that he had no knowledge or recollection of the admission by the defendant, that he collected these four judgments independent and apart from the entries "made and satisfied" on his docket. The defendant thereupon objected to the admissibility of said entries and of the testimony thereto, so far as the same might go to charge him with the collection and receipt of said judgments. The Court (PEARRE, J.,) excluded the entries, but permitted the parol testimony to go to the jury to charge the defendant, and permitted the witness to use the entries for the purpose of refreshing his recollection as to the admissions of the defendant. To this ruling of the Court, the defendant excepted.

Second Exception.--The plaintiff offered in evidence a judgment of Christian Nydegger vs. James B. Powell, and the execution thereon to Thomas Moore, constable, and an entry on the docket "returned, made and satisfied to R. P. Spiker," and then offered to prove by Townshend, that Spiker received the amount of said judgment from Moore, and that the witness knew it, because it was so entered on his docket--that if it were not so, the entry to that effect would not be there; but that he knew nothing about the matter apart from the entry, and did not recollect that Spiker admitted he received the money from Moore, or directed him to make the entry, but would not have made it unless Spiker had admitted he had received the money. The defendant objected to this testimony to charge him with the money collected by Moore, but the Court admitted it, excluding the entry of Townshend, except for the purpose of refreshing his recollection as to the admissions of the defendant. To this ruling the defendant excepted.

Third Exception.--The plaintiff offered in evidence the assignments by Christian Nydegger, for himself, and as agent of William, endorsed upon copies of the judgments, taken from the docket of Townshend, and certified under his hand and seal; and proved by Christian Nydegger, that the assignments in his name were made by him, as also the assignments in the name of William, he, Christian, having verbal authority to make them. The plaintiff further offered in...