Scaggs v. Reilly

Roberts, J., delivered the opinion of the Court. This action was brought in the Circuit Court for Prince George’s County in the name of the State of Maryland for the use of Pinkney A. Scaggs, administrator of Waite E. Brown, against Edward Reilly, coobligor in a certain writing obligatory or guardian bond which he had executed and entered into with Sarah A. Brown, who is the principal but who has been returned non est, and a certain George W. Duval, who has died since the commencement of the suit. For the disposition of this appeal it will not be necessary to enter upon any extended discussion of the questions involved other than a brief reference to the only exception contained in the record. The appeal must be dismissed for the reason that the record fails to disclose and it is in fact conceded that no judgment was entered from which an appeal could be taken. The case will have to be remanded that a new trial may be had, and as the Court below committed error in refusing to permit the appellant to read in evidence the writing obligatory, which the appellee and his co-obligors had on the 20th of February, 1865, executed, we will briefly state our views upon the ruling of the Court [65] so as to avoid like error in the event of a retrial of the case. (Decided June 28th, 1898.) It appears by the record of the former appeal of this case (reported in 83 Md. 123) that this suit was originally brought in the Court below on the 13th of January, 1890, and that the ward for whose benefit this action was begun attained his majority, which occurred in the year 1879. Mr. Justice Alvey, in delivering the opinion of this Court in the case of Byrd v. Stale, 44 Md. 501, says, “ Before the adoption of the Code, the proper mode of pleading the bar of the statute of limitations to an action on a guardian’s bond, was to allege that twelve years had elapsed from the passing of the bond in the declaration mentioned, before the issuing of the writ original in the cause. Acts of 1729, ch. 24, sec. 21; 1798, ch. 101, sub-ch. 12, sec. 4; State use of Johnson v. Green, 4 G. & J. 381. But in the adoption of the Code, the law was changed, as decided in the case of Thurston v. Blackiston, 36 Md. 501; and since that time the bar commences to run only from the time when the breach of the condition of the bond occurs. The plea should therefore aver, in the language of the Code, Art. 57, sec. 3, that ‘ the debt or thing in action ’ was above twelve years’ standing before suit brought; or should contain averments of equivalent import.” So that the plea of the statute of limitations could not be made to apply in a case such as this when the breach of the condition of the bond, or the debt or thing in action was not above twelve years’ standing, before this suit brought, which was in the year 1890 as hereinbefore stated. It follows from what we have said that this appeal must be dismissed. Appeal dismissed.