Babylon v. Duttera

Briscoe, J., delivered the opinion of the Court. This is an action at law instituted in the Circuit Court for Carroll County, by the appellant against the appellee, to recover on three promissory notes executed by the appellee to one William Babylon, and assigned by him to the appellant. The defence relied upon in the Court below was limitations. The exceptions relate principally to that ques ⁴⁴⁵ tion, and to the granting of the defendant’s prayer, which was as follows: That there is no legally sufficient evidence in this cause to remove the bar of the Statute of Limitations pleaded by the defendant, and the verdict of the jury must be for the defendant.

The first question is raised by the defendant’s demurrer to the plaintiff’s replication No. X, to defendant’s third plea, which is the plea of limitations. The demurrer to this replication was sustained, but, even if there was error in the ruling of the Court on the demurrer, it would not furnish ground for the reversal of the judgment, because, conceding that the facts stated in the replication constitute an estoppel in pais, it could have been given in evidence under the other pleadings in the case. Higgins v. Carlton, 28 Md. 127 ; Brooke v. Gregg, ante, p. 234. In Alexander v. Walter, 8 Gill, 274 , it is said : “Such estoppels cannot be pleaded, but are given in evidence to the Court and jury, and may operate as effectually as a technical estoppel, under the direction of the Court.” Yingling v. Hoppe, 9 Gill, 313 .

The remaining questions arise upon the rulings of the Court on the admissibility of certain record evidence to prove an admission and acknowledgment by the defendant of the debt in question, within the statutory period. It appears from the record that by the first and second exceptions, the plaintiff offered in evidence the record in the Circuit Court for Carroll County, being Equity No. 3192 on the docket of the Court, and to read the bill in that cause, and the printed record to the jury. And especially to read the depositions to the jury of Amos Duttera, and interrogatories six, seven and eight, contained .on page 89 of the printed record in respect to the third replication, and offered to follow proof with evidence identifying the notes in suit as included among those referred to in the record, and of which the witness was being examined, and that Amos Duttera, whose depositions appeared therein, is ⁴⁴⁶ the same person as the defendant in this case, the plaintiff stating that the evidence is offered to support his joinder on the third plea. The depositions of Amos Duttera, referred to in No. 3192 Equity, are as follows, and were taken on the 29th of April, 1895. “ Int. 6.

Had you ever borrowed from William Babylon in his lifetime any sum of money for your own benefit ? If yes, how much, how long ago, and did you repay him. “Ans. I might have borrowed several hundred dollars. It was inside of ten years of his death, but I repaid him. “ Int. 7.

Explain what the notes, which have been mentioned in this cause as having been given by you to Mr. Babylon, and assigned to Mrs. Babylon, were for, and how they happened to be given ? “Ans. They were given for money which I put out for him. I mean invested for him. I wanted to give him the notes of the parties to whom I had lent the money, and he told me he did not know the parties, and I should give him my obligations, as I would have to attend to it at any rate. “ Int. 8.

Was anything said to him by you of his having assigned these notes ? “Ans. At April, when the interest was paid, I always credited the interest paid on them myself; and the last April I paid the