Morris v. Hazlehurst

30 Md. 362 | Md. | 1869

BreNT, J.,

delivered the opinion of the Court.

There are two exceptions taken in this case, which will be disposed of in the order in which they occur.

The first exception is to the question put to the witness upon cross-examination, “if he had ever authorized any one to waive his discharge under the insolvent laws, or the bar of the Statute of Limitations.” The objection to it is taken, first on the ground that it Avas not a part of the cross-examination, but an interrogartory in chief, and a leading question; and secondly, that it Avas asking the Avitness a matter of law. The question, Ave think, was properly admitted. The examination in chief was specially directed to prove by the witness that he had offered through Mr. Williams, to settle the debt sued upon if the plaintiffs Avould take fifty cents in the dollar, for the purpose of avoiding the Statute of Limitations — and the AA'itness had also spoken of his discharge under the insolvent Lavs. Both of these matters Avere proper subjects of inquiry upon cross-examination, and even if the question is a leading one, it should not be refused. The question does not necessarily require the ansAver to be “ a matter of laAV.” It may be purely a matter of fact, and no doubt Avas put and understood as intended to elicit an answer of the latter character. The Jaw of evidence cannot be safely extended so far as to exclude every question to which the ansAver might possibly involve a matter of law.

The next exception is to the instruction of the Court, that there AA'as no sufficient evidence to go to the jury to enable the plaintiffs to recover, and to the rejection of the plaintiff’s prayer. Limitations were relied upon in defence, and this exception presents the legal sufficiency of the evidence to remove the bar of the Statute. We think the instruction was properly given. The offer made by Mr. Williams, Avas “ on his own behalf/’ and is expressly stated to have been without any authority from the defendant, and not afterwards ratified by him. The evidence will not justify the conclusion that it was made by Mr. Williams, as his attorney at the time, and we are not called upon to examine the numerous decisions cited as to the extent and circumstances under which a client is bound by the acts of his attorney. It is true the witness is asked if the offer were made through Mr. Williams, “ as his attorney; ” but-his answer negatives the inference that it was, in stating that it was made without his authority, and that Mr. Williams had told him it was made “ on his own behalf.” This witness, who was also the defendant, was produced on the part of the plaintiffs, and as his evidence was not rebutted by adverse testimony, (Act of 1864, ch. 109, sec. 4,) it must be taken as binding upon the party offering it. We do not think the testimony can be considered, from any reasonable construction which can be placed upon it, as legally sufficient to be submitted to the jury to establish an acknowledgment on the part of the defendant to bind him, and take the case out of the operation of the Statute.

(Decided 12th March, 1869.)

The question, as to the offer spoken of in the testimony being an offer to compromise, and presented so fully in the argument with the request that it would be embraced in our decision, we regret is not before us upon the record in this case. ' That is an objection which goes to the admissibility or competency of the evidence, and not to its effect after it has been allowed to go to the jury. As there was no objection and exception to its admissibility below the point does not arise, and cannot be made the proper subject of our decision. The question, however, has heretofore been presented to this Court, and will be found to have been decided in the case of Reynolds, Adm’r of Paul vs. Manning, et al., 15 Md., 526.

Judgment affirmed,