State Ex Rel. Scaggs v. Reilly

Page, J., delivered the opinion of the Court. The record in this case is very meagre, even when taken in connection with the records in the two former appeals ; so that we have had no little difficulty in determining with precision what was done in the lower Court. The suit was brought in 1890, on a guardian’s bond, alleged to have been executed by Sarah A. Brown, guardian of Waite E. Brown, and George W. Duvall and Edward C. Reilly, sureties. Mrs. Brown was returned non est and Duvall has died since the commencement of the action.

The narr. set out the bond and the alleged breaches. The appellee originally pleaded performance and limitations, but subsequently by leave of the Court withdrew these pleas and filed a plea of non est factum. While the pleadings were in this condition, the appellant moved and the motion was granted, “ to amend writ and other proceedings ” where the name of Edward C. Reilly occurs to Edward Reilly. The record shows that on the same day an amended narr.

(which is fully set out) was filed, but it does not appear whether “ the other proceedings ” were amended in accordance with the leave or otherwise. The appellee thereupon filed two pleas, setting up limitations, both of which were stricken out on a motion of ne rccipiatur; this action of the Court was not appealed from and therefore we are not concerned with it now. On the same day the appellee filed three other pleas, setting up performance by the guardian, release, and laches “for defence on equitable grounds.” At the trial one exception was taken, and it presents the only questions we are now called on to determine. The Register of Wills of Prince George’s County, having been sworn as a witness on behalf of the appellants, produced one of the record-books of his office containing the record ¹⁶⁴ of the bond sued on; which was offered in evidence for the purpose of proving the bond.

At the same time the appellant stated that he would follow it up with proper legal evidence of the guardian’s account of said Sarah A. Brown, guardian, &c. The Court refused to permit the book, and bond account to be offered. The appellee contends that the tender of the appellant was properly rejected because the bond was of more than twelve years’ standing and therefore barred by limitations ; and also because the plea of non est factum was still in the cause, which imposed on the appellant the burden of proving the execution and