Nelson v. Bond , 1 Gill 218 ( 1843 )

Spence, J.,

delivered the opinion of this court.

The statement of facts in this case set forth that the action is instituted upon a promissory note executed by Elizabeth Stansbury to Joshua B. Bond and Richard Bond; that the note was made and executed in the State of Louisiana, and that at the time the parties were citizens of the said State; it is also admitted, that subsequently to the time of making the note, the defendant Elizabeth removed to the State of Maryland, and tyas discharged under the insolvent laws of Maryland, and intermarried with the defendant William Nelson. It is further admitted, that Richard Bond hath died, and Joshua B. Bond survived him.

The first reason presented to our consideration why this court should reverse the judgment of the county court, is, because the discharge of the wife while single under the insolvent laws of Maryland, is a bar to the recovery by the appellee in any of the courts in this State. We think this is not an open question in Maryland, since the decision in the case of Frey vs. Kirk, 4 G. & J. 509, in which this precise point was made, and after a full investigation of the authorities on the subject, this court decided the discharge was no bar to the action.

We are of the opinion, that under the statement of facts, the plea of limitations is out of the case. This plea is classed among those not deemed meritorious, and in relation to the reception of which, courts of justice act with care and strictness.

The limitation of time within which this plea might have been filed under the rules of Harford county court, expired on the 1st day of November 1840; the agreement states that the plea of limitations is not to be considered as filed sooner than May term 1841.

It is insisted, that the rule to plead was extended at Nov. term 1841, and thereby gave the defendant liberty to file this plea. This would be rather a strange effect, resulting from the plaintiff’s courtesy to the defendant, if it conferred upon him a right which he had lost by his default, to wit, to plead any other plea than one to the merits. To adopt such a construction of the rules of court, would be to change the long established practice in most of the judicial districts in Maryland, 3 change which might not tend to promote the ends of justice.

JUDGMENT AFFIRMED.