Linthicum v. Remington

15 F. Cas. 565, 5 D.C. 546, 5 Cranch 546

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: March 15, 1839
• Status: Published

Opinion

But the Court

(Thruston, J.,

absent,) overruled the objection, 1st. Because no error in the judgments can affect the sale under the fieri facias; and secondly, because the rule to plead had expired in the vacation preceding the imparlance term.

Mr. Brent contended that the marshal could not amend his return during the trial; and cited 2 Starkie, 520, part iv.; Clarke v. Belmear, 1 Gill & Johns. 444; Barney v. Paterson, 6 Har. & Johns. 205; Berry v. Griffith, 2 Id. 337.

The counsel for the plaintiff, in opening his case, stated to the jury that the plaintiff claimed title to the premises in question under a sale by the marshal, under a writ of fieri facias at the suit of O. M. Linthicum against Z. M. Offutt; and that the defendant claimed title to the same premises, under a conveyance from the said Offutt to the defendant, which would be proved to be fraudulent and void as against the plaintiff; and the counsel for the defendant having, in his opening of his cause stated to the jury, that the defendant did claim title under the said conveyance from Offutt to Remington, and the plaintiff having offered the evidence aforesaid, now, for the purpose of showing that the said defendant claimed title under Offutt, and preparatory to impeaching the same for fraud, gave in evidence the deed from Offutt to James Remington; and the deed from James Remington to William Remington the defendant, and then offered evidence to prove that the said deeds were fraudulent and void as against the plaintiff; to the admissibility of which evidence the defendant objected, but the Court overruled the objection, and the defendant took his bill of exceptions.

The defendant having given a release to the said James Remington, offered him as a witness to support the validity of the deed from his brother-in-law Offutt to him, and from him to his father the defendant, which were alleged to be fraudulent.

And the Court (Cranch, C. J., doubting,) permitted him to be sworn and examined as a witness for the defendant.

Mr. Coxe, for the plaintiff, offered to examine Mr. Marbury as to facts stated to him by Offutt when he requested Mr. Marbury to draw a deed for. him. Mr. Marbury was an attorney and counsellor of this Court, and often drew conveyances; and having been sworn on the voir dire, said that he considered the communication as having been made to him in his capacity of attorney, counsellor, and conveyancer.

The Court refused to, permit Mr. Marbury to state the facts which were communicated and the advice he gave to Offutt.

Mr. Coxe cited Chirac v. Reinicker, 11 Wheat. 294.

Verdict for plaintiff.

Judgment affirmed by the Supreme Court, January, 1840.