Stockett v. Sasscer

Tuck, J., delivered the opinion of this court. It appears by the docket entries set out in the first exception, and also from the pleadings in the cause, that the plaintiff had filed his replication to the plea of limitations, to which the defendant had joined issue, before the ne recipiatur was entered to that plea. The irregularity, if any, as to the time of filing the plea was thereby waived, and we approve of the court’s refusal to strike it from the rolls. 3 Ch. Genl.

Pr., 461, 509. Macnamara on Nullities and Irregularities, 17, 18, 171. 1 Sellon's Pr., 102. 6 H. & J., 272, Benson vs. Davis. ³⁷⁸ The second exception was taken to the rulings of the court upon the evidence applicable to the plea of limitations. The suit is in assumpsit on an account running from June 1845 to August 1848, embracing numerous transactions of large amounts between the defendant and the plaintiff’s intestate. Non assumpsit and limitations were pleaded.

It appears that “in 1850, a controversy arose between the plaintiff and defendant, in the presence of the witness, as to the state of the accounts between them, in which the plaintiff claimed a balance due him of upwards of $600. The defendant said that he did not owe said balance, and that upon a just settlement the plaintiff was in his debt, and observed to the plaintiff, why do you not sue me? to which plaintiff replied, it was useless to sue as the account was out of date; the defendant answered, no time nor limitations was to him a bar to a just debt; that it was then mutually agreed between plaintiff and defendant, to submit the claims and vouchers on either side to the arbitrament of the witness, or to witness and his brother, with a mutual understanding (as witness understood when he accepted the reference) between them, that whoever was found by him indebted was to pay the indebtedness so ascertained, (although nothing was said by either party on that subject.) The defendant said, at the time of the agreement to refer, that Mr. Locke, the plaintiff, owed him, and Mr. Locke said that the balance was due him as appearing by his books.” The witness also proved that no award was made. Upon applying to these facts the principles of the law of limitations as well settled in this State, we do not perceive that the appellant can claim a reversal of the judgment. It has been often ruled in this court, that the acknowledgment to take a case without the statute must be of a subsisting debt, and equivalent to an implied promise to pay; and it must not be accompanied by any qualification or declaration which, if true, would exempt the party from a moral obligation to discharge it.

Oliver vs. Gray, 1 H. & G., 204 . Frey vs. Kirk, 4 G. & J., 509 . Brookes vs. Chesley, 4 Gill, 205 . Duvall vs. Peach, 1 Gill, 172 .

Beltzhoover vs. Newell, 11 G. & J., 216 . Ellicott vs. Nichols, 7 Gill, 85 . Mitchell vs. Sellman, 5 Md. Rep., 377. ³⁷⁹ It is impossible to infer any design on the part of the defendant to recognise or acknowledge liability to Locke from what occurred at the interview between them. We are not to seize upon one or more isolated expressions, but the whole admission or conversation must be taken together, as well the acknowledgment as all qualifications or conditions, blow we are told that this conversation commenced by a controversy between the parties; that is, as we suppose, that they were disputing ns to the existence of any indebtment at all by Sasseer to Locke.

So far from his intimating any purpose to pay the demand, he invited a suit by way of showing that he would not pay unless compelled by legal process. More than this, he averred that he had overpaid what he had owed, and that a balance was due him by Locke upon a fair statement of the accounts. The example put under the third resolution, in Oliver vs. Gray, is of this kind, “as if the defendant admits the debt, but at the same time resists the payment of it by alleging that he has a set-off against it, and that the plaintiff owes him more money; which virtually amounts to a dental of his liability and a refusal to pay any part of it, on grounds furnishing a sufficient moral excuse for not paying it.” And the doctrine has been recently recognised in this