Ferguson v. Harwood
11 U.S. 408 (1813)

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U.S. Supreme Court

Ferguson v. Harwood, 11 U.S. 7 Cranch 408 408 (1813)

Ferguson v. Harwood

11 U.S. (7 Cranch) 408

Syllabus

If a clerk of a court certify at the foot of a paper purporting to be a record, "that the aforegoing is truly taken from the record of proceedings" of his court, and if the judge, chief justice, or presiding magistrate certify that such attestation of the clerk is in due form of law, it is to be presumed that the paper so certified is a full copy of all the proceedings in the case, and is admissible in evidence.

But if the writing produced does not purport to be a record, but a mere transcript of minutes extracted from the docket of the court, it is not admissible in evidence.

A variance is immaterial which does not change the nature of the contract.

If a bond of conveyance (then in suit) be assigned, and the assignor agree to refund to the assignee the value thereof if the property should not be recovered on the bond, it is sufficient for the assignee, in a suit against the assignor upon his promise to refund, to aver that the property was not recovered in the suit which was pending when the agreement was made to refund.

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 16, 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 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 14, 1798, for the purpose of recovering the property therein 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."

"ENOS D. FERGUSON "

Page 11 U. S. 409

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 __ percent 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 . . . 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, whereof the said Enos had notice. . . ."

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

Page 11 U. S. 410

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, 1811."

"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.

Page 11 U. S. 412

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