Buffington v. Davis

Grason, J., delivered the opinion of the Court. The first question to be considered in this case is presented by the motion to dismiss the appeal, which is based upon the-ground that the bill of exceptions was not prepared and submitted to the Judge at the same term of the Court at which the case was tried. The 36th Rule of the Superior Court of Baltimore city provides that “every bill of exception taken to the ruling of the Court, in the progress of the trial, must, if required by either, party, be prepared and settled before the verdict is rendered; and in every case, unless otherwise allowed by the Court, the bill of exceptions shall be prepared and submitted to the Court during the sittings of the term at which it shall have been taken.” This case was tried in the Court below at the September Term, and the bill of exceptions was not prepared and submitted to the Judge until the January Term succeeding; but it appears from the record that the appellee did not require that the bill of exceptions should be prepared and submitted to the Judge before the verdict was rendered, and that the appellant asked for time, to prepare the same, and that the time was allowed by the Court for that purpose, and that the exception was prepared and submitted to the Judge for his signature about a month afterwards, and that it was then signed and sealed as of the date of the trial. The bill of exceptions appears to have been prepared and submitted to the Judge in accordance with the provisions of the 36th Rule, and the motion to dismiss the appeal must therefore be overruled.

The second question to be considered is raised by the instruction given by the Court below to the jury, “that the evidence offered by the plaintiff in support of the issue joined upon the defendant’s third plea is not sufficient in law to remove the bar of the Statute of Limitations, and that their verdict must therefore be for the defendant.” The suit was brought upon a promissory note of the defendant to C. R. Brewster or order, for twelve hundred dollars, and. was dated 16th March, 1861. The defendant filed three pleas: first, ⁵¹³ that she never was indebted as alleged; second, that she did not promise as alleged; and third, the Statute of Limitations. The signature to the note and the endorsement thereon were both admitted to-be genuine. The only proof, therefore, offered by the plaintiff related to the new promise alleged to have been made by the defendant, and consisted of two letters addressed by the plaintiff’s counsel to the defendant and her agent in Mississippi, both dated 16th November, 1868, and the replies thereto.

The first called the defendant’s attention to the note, particularly describing it, and stated that Mr. Buffington, as trustee of Mrs. Elizabeth Kelton, was compelled to take some action, either to have the claim liquidated, or placed in such form as to avoid its being barred by limitations. To this letter the defendant replied the same day, and stated that she “ regrets that in replying she cannot remit the amount due Mrs. Kelton. But year after year of disastrous failure in the crops, added to heavy losses incident to the late struggle of the South for freedom, have wrecked her fortune, and for two years passed she has lived upon the sale of jewels.” She then asks the counsel of the plaintiff to communicate with Col. E. J. Shaffer, of Mississippi, who, she states “ has a power of