Byrd v. State, to Use of Stewart
| Decision Date | 10 May 1876 |
| Citation | 44 Md. 492 |
| Parties | S. ADELINE BYRD and JOHN W. CRISFIELD, Executors of WILLIAM J. BYRD v. THE STATE, use of WILLIAM STEWART, Guardian of JOHN D. WALTER. |
| Court | Maryland Court of Appeals |
APPEAL from the Circuit Court for Somerset County.
John W Dougherty was appointed guardian of John D. Walter by the Orphans' Court of Somerset County, and gave bond as such guardian, dated November 3rd, 1857, with John W. Crisfield and William J. Byrd as his sureties. His guardianship was afterwards revoked, and his surety John W. Crisfield was appointed in his place. Crisfield was also subsequently removed and William Stewart was appointed to succeed him. The present action was brought 2nd of April, 1872, by Stewart as such guardian, in the name of the State, against S. Adeline Byrd and John W. Crisfield the executors of William J. Byrd as one of the sureties upon the bond given by John W Dougherty as guardian. The defendants filed twenty-five pleas, the first nine of which were pleas of the Statute of Limitations, and were as follows:
1st. And the said defendants, by their attorney, John H. Handy for plea, say, that the said William J. Byrd, the testator of defendants, did not at any time within twelve years next before the commencement of this suit, undertake or promise in manner and form as the said plaintiff hath above complained and this the said defendants are ready to verify.
2nd. And for a second plea in this behalf, by leave of the Court first had and obtained, the defendants say, that the alleged cause of action did not accrue within twelve years before this suit.
3rd. And for a third plea in this behalf, by leave of the Court first had and obtained, the defendants say, that the plaintiff, her said suit against them to have and maintain ought not, because they say that the cause of action in the said declaration supposed, did not, at any time within twelve years next before the commencement of the said action, accrue to the plaintiff, and this they are ready to verify. Wherefore they pray judgment, if the said plaintiff, her said action thereof against them ought to have or maintain, &c.
4th. And for another plea in this behalf, to the plaintiff's declaration, by leave, &c., the defendants say, that the plaintiff her said action to have or maintain ought not, because they say that the said Wm. J. Byrd, their testator, and the said John W. Dougherty and John W. Crisfield, did not, nor did either, or any of them, make the promises above supposed by the plaintiff in her declaration, any time within twelve years before the commencement of the plaintiff's action aforesaid, and this they are ready to verify. Wherefore they pray judgment, if the said plaintiff, her action aforesaid thereof against them shall have and maintain, &c.
5th. And for another plea in this behalf, by leave of the Court first had and obtained, the defendants say, that the plaintiff, her said suit to have and maintain, ought not, because they say that the writing obligatory in said declaration first mentioned, and averred to be signed and sealed by Wm. J. Byrd, the defendants' testator, together with John W. Dougherty and John W. Crisfield, was of more than twelve years standing at the time this action was instituted, and this they are ready to verify. Wherefore they pray judgment, if the said plaintiff, her action aforesaid thereof against them shall have and maintain, &c.
6th. And for another plea in this behalf, by leave of the Court first had and obtained, the defendants say, that the plaintiff, her said action against them to have and maintain, ought not, because they say that the said debt in the plaintiff's declaration first set out and averred, was above twelve years standing at the time this suit was instituted, and this they are ready to verify. Wherefore they pray judgment, if the said plaintiff, her action aforesaid against them shall have and maintain, &c.
7th. And for another plea in this behalf, by leave of the Court first had and obtained, the defendants say, that the said plaintiff, her said action to have and maintain against them, ought not, because they say that the said writing-obligatory first mentioned in said declaration, and alleged to have been signed and sealed by said William J. Byrd, together with John W. Dougherty and John W. Crisfield, was not approved and passed by the Orphans' Court of said Somerset County, within twelve years before the impetration of the original writ in this action, and this they are ready to verify. Wherefore they pray judgment, if the plaintiff, her said action against them ought to have and maintain, &c.
8th. And for another plea in this behalf, by leave of the Court first had and obtained, the defendants say, that the plaintiff, her said action to have and maintain, ought not, because they say the said William J. Byrd, the testator, signed and sealed the writing-obligatory first in the said plaintiff's declaration mentioned, as the surety in said writing-obligatory of said John W. Dougherty, and that the said writing-obligatory was of more than twelve years standing at the time the original writ in this action was sued out, and this they are ready to verify. Wherefore they pray judgment, if the plaintiff, her said action to have and maintain, ought, &c.
9th. And for another plea in this behalf, by leave of the Court first had and obtained, the defendants say, that the plaintiff, her said action to have and maintain, ought not, because they say that the said William J. Byrd, their testator, signed and sealed the said writing-obligatory in the said declaration first mentioned, as the surety of said John W. Dougherty, and that the said writing-obligatory was not approved and passed by the Orphans' Court of said Somerset County, within twelve years before the commencement of this action, and this they are ready to verify. Wherefore they pray judgment, if the said plaintiff, her said action to have and maintain, ought, &c.
The substance of the thirteenth and fourteenth pleas, is sufficiently stated in the opinion of the Court; the other pleas it is not necessary to notice. The plaintiff demurred to the first, fourth, fifth, sixth, seventh, eighth, ninth, thirteenth and fourteenth pleas, and the demurrers were sustained.
First Exception.--The plaintiff, with other evidence, offered an account passed in the Orphans' Court by John W. Dougherty as guardian for his said ward. And then offered the said John W. Crisfield, as a witness, to prove that he had never received any money from said John W. Dougherty, in payment of the balance stated to be due in said account, and asked the following question: "Have you ever received from John W. Dougherty, the late guardian of John D. Walter, any of the moneys, property or effects, of the said John D. Walter?" To which question the defendants' counsel objected, but the Court, (FRANKLIN, J.,) overruled the objection, and permitted the question to be asked. Whereupon the witness replied "that he had not." The defendants excepted.
Second Exception.--The witness was then asked the following question: "Did you ever as guardian of John D. Walter, receive from John W. Dougherty, moneys, funds, property or effects of the said John D. Walter?" To which question the defendants objected, but the Court overruled the objection and permitted the question to be asked, and the witness replied, "he had not." The defendant excepted.
Third Exception.--The equitable plaintiff, then offered himself as a witness, and proved that he had never received any of the moneys or effects of his ward, John D. Walter, from either John W. Dougherty or John W. Crisfield. On cross-examination he stated that he had paid out, on account of said ward, and to him, eleven hundred and eighty-four dollars, and produced receipts and statements of the same. And proved that said ward was made of age by the Act of Assembly passed at the session of 1872. On re-examination, he was asked the following question by the plaintiff's counsel: "Why did you pay this money?" To which question the defendants objected, but the Court overruled the objection and permitted the question to be asked, when witness stated that the ward was in necessity, and that after he became of age by virtue of the Act of Assembly, he desired to go into business, and that witness advanced him the money, expecting to get it back out of the proceeds of this suit, if he gained it, and if he did not gain this suit, that he was liable as security of John W. Crisfield, and that the money would pass through his hands any how, and that that was the understanding between him and his ward. The defendants excepted.
Fourth Exception.--Two guardian's accounts passed by John W. Crisfield in the Orphans' Court having been offered in evidence by the defendants they asked the Court to give a construction to the said accounts. The Court, on such request, gave the following construction: "That the said accounts furnished no evidence that John W. Crisfield thereby charged himself, as guardian, with the sum of money therein stated to be due to John D. Walter, his ward." To which construction of said accounts, and the decision of the Court thereon, the defendants excepted.
Fifth Exception.--The defendants then offered the following prayers:
1. That if the jury believe from the evidence, that John W Crisfield, the former guardian of John D. Walter, rendered the accounts offered in evidence as having been passed by him on the 28th of March, 1870, and the 13th of January, 1871, to the Orphans' Court, and that the same were proved and passed and ordered to be and were recorded by the Orphans' Court, that then the legal effect of the same is to charge himself with the amount of $2021.94 cents, principal, and $144.89 interest, in the first, and with $1881.57...
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