Cook v. Carr ( 1863 )

Cociiran, J,,

delivered the opinion of this Court:

It appears fiom this record, that the appellant, some five months after issues as to his indebtedness to the estate of Sarah A. Weigart had been framed iu the Orphans’ Court, with his consent, and transmitted to the Superior Court, prayed that another issue might be made up and sent for trial with the issues then pending, which the Orphans' Court refused. The question submitted for the finding of the jury by the issues transmitted was, 1st, whether the appellant was indebted to the estate of Sarah A. Weigart; and if so, 2nd, to what amount; and that proposed by the issue prayed and refused was, if he should be found to be so indebted, whether the indebtedness accrued within three years.

The plea of limitations is not usually regarded with favor, and we infer, by way of analogy from the strict rules applying to that defence in cases at law, that it was too late for the appellant to resort to that defence under the circumstances shown in this case. Waiving all objection to the issue proposed, on the ground of uncertainty as to the lime from which to compute the period of three years, the finding of the jury upon it could have served him only as a foundation for that plea, and as a period of several months had passed from the time the issues then pending were framed upon his answer to the appellees’ petition, we must hold that he was barred by lapse of time from making that defence. But without regard to this consideration, the issue prayed was evidently intended to modify those previously transmitted, and as we have already said in the appeal from the rulings of the Superior Court in the trial of these issues,, the Orphans’ Court had no power, at that time, to transmit au issue that would produce that result.

(Decided Dec. 15th, 1863.)

In our opinion the issue prayed was property refused, and we therefore affirm the order of the Court with cost» to the appellees.

Order affirmed with costs to appellees.