Lee v. Byrnes

Alvey, J., delivered the opinion of the Court. The counsel for the appellant did not, as we understood him, insist on the first exception. That the appellant had no right to amend so as to plead in abatement, at the stage of the cause when the motion for leave was made, is too clear for question; the cases of Chapman vs. Davis, 4 Gill, 166 , and Eschbach vs. Bayley, 28 Md., 492 , being conclusive against it. That exception, therefore, might well be abandoned.

The second exception taken to the refusal to grant prayers on the part of the appellant, presents a question equally free from difficulty as the first. The action was brought on the 17th of October, 1866, to recover of the appellant the balance of an account alleged to be due the appellee. The account was contracted in May, 1860, and was for $187.50. Subsequently two credits were given on the account, the one on the 4th of September, 1863, and the other on £he 24th of September, 1864, which, on the day of the last credit, reduced the account to $113.74, being the balance sued for.

The verdict was for $134,91, being the amount of such balance, with interest thereon to the time of verdict. The appellant pleaded, as set-off, an account which accrued in 1859, and was for, and in respect of, distinct dealings between the parties from those in respect of which the appellee’s accouut accrued. The Statute of Limitations was not relied on as a defence to the claim of the appellee, but it was pleaded and relied on as an answer to the account in bar of the appellant. And it is now contended that these accounts, though accruing at different times, and in respect to distinct dealings and transactions, constitute mutual accounts, and ⁹⁰ because the statute was not pleaded, or was not pleadable, so as to bar the claim of the appellee, it should not apply to the claim of the appellant; and it is in reference to such theory that the first, third and fourth prayers of the appellant are attempted to be supported.

That a demand barred by the statute cannot be made