Cook v. Carr

Cochran, 3., delivered the opinion of this Court: This is an appeal upon exceptions taken to the rulings of the Superior Court in a trial of issues as to the indebtedness of the appellant to the estate of Sarah Weigart, sent from the Orphans’ Court for Baltimore City. The appellant was the administrator of that estate, and the issues, in substance, present the simple questions, whether lie was indebted thereto, and if so, to what amount. ⁴¹⁰ After these issues had gone to the Superior Court-, the appellant filed a plea of limitations, which, on motion of the ■apjoeliees, was stricken out; he then filed a motion for a continuance, on the ground of an application then made to ■the Orphans’ Court to send another issue to be tried with the issues then pending, which motion the Court over-rpled. As the questions as to the propriety of the Court’s ■action on these motions have no connection with those ■subsequently raised in the progress of the trial, we shall ■consider them ¡separately. These issues having been framed, tvithout objection from the appellant, so as to present for the finding of the jury the fact, as w*ell as amount of his indebtedness to the estate of Sarah A. Weigart, without regard to time, it is obvious that the plea of limitations would have had the effect of varying the real questions transmitted for trial.

The construction of the Act of 1798, ch. 101, sub-ch. 15, secs. 16 and 17, and sub-ch. 8, sec. 20, providing for making up and transmitting issues, given in the case of Pegg vs. Warford, 4 Md. Rep,, 385, warrants the conclusion that there can be no modification of issues after they have been sent from the Orphans’ Court. The issues as transmitted present all the questions, and of necessity'- the only questions, the jury can try, and neither party has any power, by plea or otherwise, to change or qualify tbem. The plea in this case was clearly objectionable on that ground, and in our opinion was properly stricken out. For substantially the same reason, the motion for a continuance was properly overruled.

The affidavit of the appellant upon which that motion was based, shows that the issue prayed in the Orphans’ Court was not a separate and independent issue, but one intended to change or qualify the issues then pending in the ¡Superior Court, and as the Court of Appeals said in Pegg vs. Warford, that it “did not regard the Orphans’ Court as having power to revoke or remodel issues after they have been transmitted,” we must bold that no sufficient cause of continuance was shown. During tbe trial the appellant reserved four exceptions, ⁴¹¹ three of them having been taken to the- admission of evidence, and the 4th to the