53 Md. 37 | Md. | 1880
delivered the opinion of the Court.
Most of the questions arising in this case may he disposed of in considering the motion to dismiss the appeal. The reason in support of that motion, that the appeal was taken pending a motion for a new trial and before the judgment was rendered, has, by agreement of counsel, been waived and abandoned. Another ground, that the exception was not signed during the term at which the case was tried, and that the order extending the time was not passed during that term, has been relied on, hut we think it very clear it cannot he sustained. The rule of Court set out in the record, provides that every hill of exceptions taken in the progress of the trial must, if required by either party, he prepared and settled before the verdict is rendered ; and in every case, unless otherwise expressly allowed by the Court, the hill of exceptions shall he prepared and submitted to the Court during the settings of the term at which it shall have been taken. The case was tried at the January Term, 1879, of the City Court, and on the morning of Monday, the 12th of May, 1879, which was the first day of the following term, before the adjournment of the January term, and before the calling of the May term, the Court, upon application of the defendant, passed an order allowing him five days from that date to prepare and file his exception, and within that time it was prepared and signed. There is nothing to show that the “ settings” of the January term did not cpntinue during the whole term, and the question, therefore, is, was the order extending the time passed during that term ? This question is conclusively settled by the decision in Townshend vs. Chew, 31 Md., 247, where it was held that the term continued until the call of the next succeeding term, unless it affirmatively appeared that before that time it had, by order of the Judge, been adjourned sine die. In that case, a motion to strike out a" judgment was made on the first day of the term next sue
The only exception taken by the appellant, the defendant below, was to the refusal of the Court to allow him to file the plea of limitations to the second, third and fourth counts of the amended declaration. The action was for slander, and was instituted on the 30th of September, 1878. The original declaration contained two counts, charging the defendant with speaking of the plaintiff words which imputed the crime of larceny. The words in the first count are : “ Fox stole my guano and sold it to Dave Specht,” and in the second, “ he stole my.fertilizer, and sold it to David Specht.” The defendant pleaded not guilty, and the trial was begun on the 17th of April, 1879. The plaintiff offered testimony tending to prove that the defendant in the fall of 1877, between one and two years ago, spoke of Fox these words; “ as much as I have done for the dirty rogue, I have sent guano up from Baltimore to put on my place, and instead of putting it on my place, he sold it to Dave Specht.” As soon as this testimony was delivered the plaintiff asked and obtained leave to amend, and on the same day filed his amended declaration in which the first count of the original narr. was retained, hut three others of an entirely different character were added. Of these the second only need be stated, as the other two merely vary the words. It avers that the plaintiff was employed by the defendant in cultivating his farm in Frederick County, and in such employment was acting as the agent of the defendant, and that the defendant had
It is very clear these counts make an entirely new case. They charge the speaking of words, which under the statements of the colloquium, impute to the plaintiff the statutory offence of embezzlement, and not the common law crime of larceny. The amendment was a material one, for without it the words set out in these counts could not have been given in evidence, and no case could have been made out by them against the defendant. The occasion for the amendment was brought about through no fault, on his part. No continuance was allowed, and as soon as. it was filed the defendant was compelled to plead at once to this amended and new declaration. We are all clearly of opinion that under the circumstances he had the right to interpose the plea of limitations as a defence to the new case-thus made against him. It is true that according to-the current of decisions in Maryland, the plea of limitations is not a plea to the merits, cannot he entered short, on the docket, is never permitted to be amended, and cannot be filed after the rule day. Still it is a defence which the statute law of the State has wisely provided, and cases have arisen in which the defendant's right to interpose this plea even after the rule day, has been sustained. Thus Tinder the state of facts that existed in- the case of Newcomer vs. Keedy, 9 Gill, 263, it was held the plea
If then the defendant was entitled to make this defence, it follows necessarily that the refusal to allow the plea to he filed, was not a matter of discretion in the Court from which no appeal lies, hut a matter of right the refusal of which is a subject of appeal and reviéw. Nor can the filing of this plea he regarded as an amendment of the pleadings, from the allowance or refusal of which it has always been held no appeal lies. Crockett vs. Parke, 7 Gill, 237; Gordon vs. Downey, 1 Gill, 441; Ellicott vs. Eustace, 6 Md., 506; Deford vs. Keyser, 30 Md., 179; Scarlett vs. The Academy of Music, 43 Md., 203. The amendment of a declaration or a plea is one thing, hut the refusal to receive, when tendered, a plea which the defendant has the right to interpose, or the striking it out after it has been filed, is quite another. The decision in Newcomer vs. Keedy has settled the right of appeal in such cases. It has been further argued that under the present law as to amendments (Code, Art. 75, sec. 23,) the privilege of amending was given in order that the “ case may he tried on its real merits,” and as limitations is not a plea to the merits, it could not have been the intention of the Legislature, that when a plaintiff availed himself of the
But it has been further argued that though there may have been error in the refusal to receive this plea, still the judgment ought not to be reversed, because it is apparent from the record it was an immaterial error from which the defendant received no injury. Nothing tending to show this is to be found in the defendant’s exception, and in strictness that is the only matter before us on this appeal. If there is any thing to show it, it is contained in an exception taken by the plaintiff. Assuming we can consider this exception for this purpose, what does it show ? It is an exception to the dismissal of a petition filed by the plaintiff, in which he asked the Court to insert in the defendant’s exception, the “ evidence of the defendant to
Judgment reversed, with costs, and new trial aiuarded.