Wiley v. Heaps

Schmucker, J., delivered the opinion of the Court. The declaration in this case contained only the common counts in assumpsit and was accompanied by no account or other voucher showing the particulars of the plaintiff’s claim. To this declaration the appellee, who was defendant in the Court below, filed, along with other pleas, one of limitations, which was in the following form: “ That the alleged cause of action did not accrue within three years before the institution of this suit.” The appellant demurred to the plea of limitations and replied to the other pleas. The Court overruled the demurrer and asked the appellant if he wished to reply to the plea of limitations and the appellant answering that he did notj judgment was entered against him for want of a replication to the plea of limitations. The appellant contends that the plea does not answer the entire declaration, which contains several counts, and that it is too indefinite and uncertain to apply to any particular count. It is an admitted principle of pleading that when a plea is intended for part only of a declaration it must show *45 to what part it applies, and that when it is intended to go to the entire action it must answer the whole declaration. As the plea in the present case contains nothing to indicate that it was intended for only part of the action, the question to be determined is whether it responds to the entire declaration. The plea of limitations is not a meritorious one and the Courts act with care and strictness in its reception, requiring it to be filed within the rule-day and not permitting it to be amended, but, when it has been filed in due time it is construed upon the same principles as other pleas are with reference to its sufficiency and if it be sufficient in substance it will not be rejected for mere matter of form. The supposed defect in the plea now under consideration is that it describes the ground of the action as “the alleged cause of action ” when it is contended that, as there are several counts in the declaration, it should have alleged that the supposed “ causes of action did not nor did any of them accrue,” &c., &c. We do not regard this objection as a substantial one. In the forms of pleas to actions on simple contract found in Sec. 23 of Article 75 of the Code, the plea of limitations appears in almost the identical words used in the plea in the case at bar, and in the other forms of pleas there found the ground of the action is described as “the plaintiff’s claim,” “the alleged claim,” “the alleged claims” and “the cause of action.” These different expressions are used synonymously in the Code and the word descriptive of the plaintiff’s cause of action appears, with one exception, in the singular number. In the case of Bullen's Admr. v. Ridgely,1 H. & J. 104, there were, as in the present case, a number of counts in the declaration, some of which set up the promise and assumpsit of the testator and others set up matter subsequent, and the defendant filed a plea of limitations to the whole declaration. The plaintiff demurred and assigned as cause of demurrer that the plea was to the cause of action in the declaration, without naming and specifying to which cause *46 of action it was intended to apply. The demurrer was overruled. No opinion was filed in the case, but the precise objection taken to the plea in the case now under consideration appears by the record to have been assigned as cause of demurrer in that case, and must have been passed upon by the Court and the case is relied on in Evan’s Practice, p. 183, and in Poe’s Pleading, sec. 619, as supporting the proposition that the Statute of Limitations need not be pleaded to each count in a declaration containing several counts. In Wallaces v. Shaub, 81 Md. 519, the declaration contained the six common money counts and two other counts setting up special services by the plaintiff. The defendant filed one plea of limitations, asserting that “ the alleged cause of action ” did not accrue, &c. The Court below refused a motion to strike out this plea and this Court affirmed the ruling. It is true that objection does not appear to have been made to the form of the plea in that case, but its form passed unchallenged in both Courts. In Crain v. Yates, 2 H. & G. 336, which was relied on by the appellant in support of his objection to the plea in the present case, the declaration was in debt upon two distinct written obligations, one of which was payable in money and the other in tobacco and each of which was declared on in a separate count. The defendant set up by one plea that “the said writing obligatory,” without saying which one, was above twelve years’ standing at the institution of the suit, and by another plea that “the said writing obligatory,” without specifying which one, was above twelve years’ standing. Upon demurrer these pleas were held bad for various reasons, one of which was that they were designed to bar the action as to one of the obligations sued upon, but it was not sufficiently certain to which of them the pleas applied. Neither of the pleas in that case, in describing the ground of the suit, used any such general words as “ the alleged cause of action,” or “ the alleged claim,” or any expressions indicating that they were intended to apply to the entire declaration, and the case was decided long prior to the *47 adoption of the Code, which greatly simplified the forms of pleading. (Decided March 14th, 1899). We think the plea of limitations in the case at bar was a good plea to the whole declaration and the learned Judge below properly overruled the demurrer. As an opportunity to reply to the plea was offered to the appellant, when the demurrer was overruled, and he declined to do so, we see no reason why the case should be remanded under Sec. 20 of Article 5 of the Code. The judgment will be affirmed with costs. Judgment affirmed.