Quynn v. Carroll

Lb Grand, C. J., delivered the opinion of this court. This action was brought by the appellant to recover of the appellees, as administrators do bonis non of Michael B. Carroll, an amount claimed as due for services alleged to have been rendered, as clerk and agent for the period of eight years and eight months, at $500 per year, commencing on the 1st day of January 1843 and ending on the 31st day of August 1851, amounting to $4333.33 principal, and $980 interest, making in all $5313.33. The writ issued on the 14th day of October 1853. In bar of the plaintiff’s right to recover, the defendants pleaded the statute of limitations.

The plaintiff gave evidence to show ho had been in the employ of Michael B. Carroll, during the time for' which he claimed compensation. To remove the bar of the statute of limitations, he offered in evidence an account on the books of the deceased, and in his hand-writing, against the plaintiff’, for merchandize sold and delivered to the plaintiff, commencing on the 14th day of September 1846 and closing on the 21st day of January 185!, amounting to the sum of $398.53, with a credit, in the hand-writing of Carroll, at the foot of the account, in these words:' “By amount of services rendered on account $393.53, M. B. Carroll." He also gave in evidence a receipt of his own, which was found after her death, among the papers of Mrs. Carroll, the executrix of M. B. Carroll. It is in these words: “1853, 'May 1 \th. Received of June M. Carroll, executrix of M. B. Carroll, three hundred and seven dollars and eighty-six cents, on account of services rendered said M. B. Carroll in his life time." There was other testimony offered, but it is not necessary it should be now noticed.

Admitting, ex gratia argument, that the testimony of Miss Worthington was inadmissible, and that of Dr. McCubbin insufficient to bind both of the administrators, we are yet of opinion the court erred in giving the following instruction, to wit: “That the evi ²⁰⁸ dence given in this cause was insufficient, if believed by the jury, to remove the bar of the statute of limitations relied on by the defendants in this cause, and that the plaintiff was only entitled to recover for the three years, immediately preceding the day of the impetration of the writ original in this cause.” Conceding the testimony of Miss Worthington to be out of the case, and the insufficiency of that of Dr. McCubbin, the question then is, are the entry on the books of M. B. Carroll, in his own hand-writing, and the receipt of the plaintiff found among the papers of Mrs. Carroll, executrix of M. B. Carroll, sufficient to remove the bar of the statute? The statute of limitations has ever been a fruitful source of doubt and discussion, and the decisions in regard to it, both in this Country and England, various and contradictory. This being so, Wherever it is found that the question presented in the particular • case for the time under consideration, has been settled by the adjudications of the appellate court of this State, such adjudications ought to be followed,