Walsh v. Boyle

• Decision Date: 10 March 1869
• Citation: Walsh v. Boyle, 30 Md. 262 (Md. 1869)
• Parties: WILLIAM WALSH, Trustee in Insolvency of DANIEL WINEOW v. HENRY BOYLE, and others. JOHN WINEOW v. ABNER RAVENSCRAFT, Assignee, and others.
• Court: Maryland Court of Appeals

30 Md. 262

WILLIAM WALSH, Trusteein Insolvency of DANIEL WINEOW v. HENRY BOYLE, and others.

JOHN WINEOW v. ABNER RAVENSCRAFT, Assignee, and others.

Court of Appeals of Maryland

March 10, 1869

ROBINSON J., delivered the opinion of the Court.

The real estate of Henry Wineow, deceased, was sold under a decree passed by consent, on the 5th day of April, 1858, for payment of debts and distribution among the heirs-at-law.These appeals, which have been heard together, arise upon exceptions filed by Walsh, trustee of Daniel Wineow, an insolvent petitioner, and by John Wineow, one of the heirs-at-law, to certain claims allowed in the auditor's report.

The first exception by Walsh, is to the allowance of but one-third of the amount paid by him as trustee, on account of the Hilleary judgment.This judgment was confessed at the April Term, 1851, by Henry Wineow, Daniel Blocher and Daniel Wineow, in favor of Levi Hilleary, for the sum of fifteen hundred dollars.Henry Wineow died in 1855, and afterwards Walsh was appointed trustee of Daniel Wineow, an insolvent petitioner.This judgment was filed in the insolvent estate and being paid by the trustee, he claims an allowance for the same out of the estate of Henry Wineow, upon the ground that Daniel Wineow was the surety of Henry.The first question therefore, to determine is the relation of the several obligors to each other.The receipt by each of one-third of the fifteen hundred dollars, and their agreement to pay the interest on the same to Hilleary, looks very much as if this were a joint transaction, but these facts cannot outweigh the positive and uncontradicted evidence of Daniel Wineow and Blocher.The former testifies that the money was borrowed of Hilleary by Henry Wineow, the father, without the knowledge of the witness, and that the bond was signed by him as surety for his father.He admits that his father loaned him five hundred dollars, but says that he was responsible alone to him for its payment.This testimony is corroborated by Blocher, and being the only proof in the record touching the question, it must be considered as sufficient to establish the relation of principal and surety between Henry and Daniel Wineow.

The objection to Blocher's evidence, because it was not taken upon proper notice cannot be sustained.By the order of the Court, each party was allowed to take testimony upon giving one day's notice.In this case the notice was served on the 28th, and the evidence taken on the 29th of December, 1864.Now it is true, that when a statute or rule of Court requires notice to be given of a certain number of clear days, both the day on which the notice is served and the day of the proceeding, must be excluded.King vs. Justices of Herefordshire,3 Barn. & Ald., 581, (5 Eng. Com. LawRep., 385.)

It has also been held that a statute requiring fourteen days at least, means fourteen clear days, and the same rule must be adopted.The Queen vs. The Justices of Shropshire,8 Adol. & Ellis, 173, (35 Eng Com.LawRep., 367,) and the case of Oliver vs. Towns, 1 Texas, relied on by the appellees.

But we take the law to be well settled, however, in matters of practice, where any particular number of days not expressed to be clear days, is prescribed, the rule in regard to the computation of time, is not to exclude both the day on which the notice is served, and the day on which the act is to be performed, but to exclude the one and include the other.30 Eng. Com.LawRep., 380;Hoffman vs. Diel,5 Johns., 232;The King vs. The Justices of Cumberland,4 Nev. & Man., 378, and1 Robinson'sPrac., 431.A party by this rule may not in fact receive one whole day's notice, that is, twenty-four hours, but it must be borne in mind that in legal contemplation, there are no fractions of a day, except in certain cases of priorities, where the fiction is made to give place to exact truth.

It was also insisted that Walsh, as trustee, had no right to pay the judgment until it was ascertained that the other parties were insolvent.To this we do not assent.He was a trustee in insolvency, and it was the duty of parties having liens to file the same.If the claim were filed and allowed in the audit, and no exception taken by the creditors or parties interested in the fund, it was the duty of the trustee to pay it.The creditors, say the Court in Salmon, Trustee of Brown vs. Pierson,8 Md., 298, may litigate inter sese, but the law does not impose this duty upon the trustee.Being satisfied by the testimony of Devecmon, that the judgment was paid by Walsh, as trustee of Daniel Wineow, the surety, the auditor ought to have allowed the trustee two-thirds of the amount due on the Hilleary judgment.The exception by Walsh to the allowance of only one-third was well taken, and the Court erred in overruling the same.

The allowance of John Wineow's claim for over payment as administrator of Henry Wineow, is not open for review in this appeal.It is true, exceptions were filed by Walsh, as trustee, to this and sundry other claims allowed in the first audit, but the case was remanded to the auditor by consent and with directions to take proof and state a second account.In both the second and third audits, this claim was allowed, but the exceptions to it were not renewed.Accordingly, in deciding the exceptions to the third audit, and the only audit which had been presented to the Court for its action, Judge WEISEL did not pass upon this claim.Another audit was made in conformity with the opinion of the Court, in which Walsh, as trustee, was allowed but...