Fink v. Zepp

Fowler, J., delivered the opinion of the Court. This is an action of assumpsit brought by the appellants against the appellee for goods sold and delivered. The na.rr. contains only the common counts, and the defendant pleaded the general issue and limitations. Issue was joined on the general issue pleas, and the plaintiffs replied to the plea of limitations, that the defendant removed and secreted himself out of the county where he resided, to a county unknown to the plaintiffs, so as to escape liability at law; not leaving effects sufficient and known for the payment of said debt, &c., &c.

To this replication the defendant rejoined that he did not remove, &c., but on the contrary he remained in the county where he resided, for a number of months after the cause of action accrued, when he removed to the City of Baltimore for his convenience, where he has since openly resided. And that, before leaving Carroll County, he made a deed of trust of all his property for the bene ¹⁸⁴ fit of his creditors. Issue was joined upon this rejoinder, and the case was tried before the Court without a jury. After the testimony on the part of the plaintiffs was concluded the Court helow ruled that there was no evidence in the case legally sufficient to remove the bar of the Statute of Limitations, and that under the pleading’s the plaintiffs were not entitled to recover; and refused the following prayer offered by the plaintiffs: ‘-'That if the Court find that said defendant was indebted to the plaintiff's, and while the plaintiffs were using reasonable care to collect their claim, the said defendant left the county where he resided, and did not leave effects sufficient and known to cover said indebtedness, with the result that the plaintiffs could not secure service of process on said defendant, and that the plaintiffs have since used reasonable care to collect said debt, then their verdict must be for the plaintiffs. ” The verdict being for the defendant, the plaintiff's have appealed; and the only question presented is, whether their claim, under the evidence disclosed by the record, is barred by the Statute of Limitations.

It appears the appellee, Josiah Zepp, in the early part of 1885 resided in Westminster, Maryland, and that at that time the appellants sent the claim here sued on to Charles E. Fink, an attorney at law of that place for collection. On the 11th February, 1885, the appellee made a deed of assignment for the benefit of his creditors; that during the same year, said attorney filed the claim in question in certain insolvency proceedings against the appellee, which had been instituted in Carroll County; and that said insolvent proceedings having been dismissed, he intervened in the matter of the trust estate of said appellee for the purpose of collecting said claim; that the appellee resided in Westminster, in said county, when the various proceedings above mentioned were begun, and that he was summoned in