Abbott v. Bowers

Page, J., delivered the opinion of the Court. On the 26th May, 1902, the appellee instituted suit to recover on the promissory note of the appellant for the sum of $2,250 to William Plnglar, endorsed by him to the appellee. ⁵²⁶ For the purpose of complying with the provisions of the Practice Act for Baltimore City (being Acts of 1886, chap. 184), the appellee, at the time of bringing the suit, filed with his declaration the affidavit required by the proceedure, the cause of action, being a promissory note, the protest thereon, and a notice to plead. On being summoned, the appellant appeared and filed two pleas, viz., never promised as alleged and never was indebted as alleged. Subsequently, the appellee by leave of the Court filed an amended declaration, but did not file anew the promissory note and accompanying papers.

At the trial the only testimony offered by the parties was that on behalf of the appellee proving the signature of Englar, the endorser. The appellant thereupon tendered the instruction that “there is no evidence in the case to warrant a verdict for the plaintiff and therefore the verdict of the Court must be for the defendant.” The Court declined to so rule and the appellant excepted and has appealed to this Court. The appellant contends that the promissory note which was the cause of action was not properly in evidence before the Court. The only information the record contains as to the form of the application and leave to amend is that set forth in the amended declaration itself.

It is there stated that the amended declaration was filed by leave of the Court first obtained. There is nothing to show that the application or the leave granted was to plead de novo, as was the