Adler v. Crook

Stone, J., delivered the opinion of the Court. This is an appeal from a pro forma judgment of the Superior Court of Baltimore City. The only question presented ’ to us on the appeal is, the proper construction of section 170, of the Act of 1886, chap. 184, relating to the practice in Baltimore City. Crook, Horner & Co. brought an action of assumpsit against Adler upon a promissory note, and made the affidavit required by section 171 of the Act of 1886, chap. 184.

Adler, the defendant, pleaded that he never promised as alleged, and that he never was indebted as alleged, and to these two pleas he made the affidavit that they were true to the best of his knowledge and belief, and that he believed he would be able to maintain them at the trial, and that he had been advised by counsel to make that affidavit. He also filed a certificate from his counsel, that he, the counsel, had advised the filing of the pleas and affidavit. The exception states: “ Thereupon issues were joined and said causes stood ready for trial. Thereafter the plaintiffs, by their attorney, moved for judgments by default for want of a sufficient affidavit of defence, upon the ground that said affidavits failed to set forth the amount of said claims admitted and the amount disputed, or that all of said claims were disputed, and upon said motion, and without notice to the defendant, or his counsel, judgments by default were entered therein as prayed.” It appears from this exception that the Court below decided pro forma, that in addition to the pleas filed and to which affidavit had been duly made, that it was necessary for the defendant to swear that he disputed the whole of the plaintiffs’ claim, if the whole was disputed, or to specify what part was disputed and what part was admitted, if part only was disputed. ⁴⁹⁶ The ITOth section, after providing that judgment may be entered at any time after fifteen days from the return day to which the defendant was summoned, goes on to say : “ Although the defendant may have pleaded, unless such plea contains a good defence, and unless the defendant, or some one in his behalf, shall under oath, or affirmation, state that every plea so pleaded by the defendant is true, and shall further state the amount of the plaintiff’s demand, if any thing, admitted to be due or owing, and the amount disputed ; and further, that the affiant verily believes the defendant will be able at the trial of the cause to produce sufficient evidence to support said plea as to the portion disputed, &c.” This section is amendatory of the Act of 1864, and the principal addition it makes to that Act is the provision that the -defendant, “ Shall further state the amount of the plaintiff’s demand, if any thing, admitted to be due or owing, and the amount disputed.” It is apparent that under the Act of 1864, if the defendant had a valid defence to a part of plaintiffs’ claim (if the action was assumpsit,) that he would plead the general issue and make affidavit to it, as there was so special provision made for a