Coan v. Consolidated Gas Electric Light & Power Co.

⁵³¹ Constable, J., delivered the opinion of the Court. This case has been before us once before and is reported in 126 Md. 506 . The question there was as to the correctness of a decree in sustaining a demurrer to the bill and dismissing the bill. This Court held that, in view of the concessions under the demurrer, the bill of complaint contained a good cause of action and reversed the decree and remanded the cause for further proceedings.

Separate answers were seasonably filed by each of the defendants, the same being under oath, although not required to be so by the bill. The complainant filed replications to the answers of two of the defendants, but filed exceptions to answers of the Consolidated Gas Electric Light and Power Co. of Baltimore and Abbott L. Ponniman, Jr., for insuJficieny. The exceptions were overruled, and the complainant having failed to comply with the rule “further proceedings,” the bill was dismissed as to the defendants, the Consolidated Gas Electric Light and Power Co. of Baltimore and Abbott L. Penniman. From that decree this appeal was taken, and the only question presented for our review is the correctness or not of the overruling of the exceptions.

The appellees contend that exceptions to answers not under oath will not lie, and that for this reason alone the decree should be affirmed. It must be conceded that while these answers are under oath, since they were not required to be under oath, they have the same effect as if in fact they were not under oath. Winchester v. B. & S. R. R., 4 Md. 231 ; Dorn v. Bayer, 16 Md. 144 . The argument is based upon the fact that the Act of 1852, Chapter 133, and amendments thereto, which are now codified as sections. 168 and 169 of Article 16 of Bagby’s Code, in connection with the Act of 1864, Chapter 109, whereby the disability of parties in interest from testifying was removed, have abolished the reason for exceptions to answers not under oath; and that notwithstanding the equity rules make no express distinction between permitting excep ⁵³² tions to answers under oath and those-not under oath, yet, by reason, the rules only apply to those under oath.

It is true that these statutes, by leaving it to the judgment of the complainant whether or not he shall require the defendant to answer under oath or not, wrought important changes in the trial of equity causes. Before the passage of the Act of 1852, the answer of the defendant, so far as it was responsive to the material averments of the bill, was taken to be true, unless disproved by two witnesses, or by one witness, with corroborating circumstances, and the defendant thus had a decided advantage from the use of the answer as evidence. And it has been said that the Act of 1852 was passed for the purpose of giving the complainant an opportunity of relieving himself of this burden imposed by the rule. Miller’s Equity, section 162.

While admitting that no such distinction has ever been recognized in Maryland, the appellees for support of the proposition cite the case of Taggart v. Boldin, 10 Md. 104 , and quote from the opinion therein, where it was held, as the result of the proper construction of the Acts of 1852 and 1853 (Chapter 344), that answers, not under oath, except in bills of discovery and cases heard on bill and answer, were to be treated as mere pleadings in the cause, exhibiting the points at issue, like unto pleadings in a suit at law. And the argument is now urged that if the answer is to be treated as pleadings and not as evidence, then the reason for allowing exceptions for insufficiency vanishes, and cites decisions from a few other jurisdictions to that effect. We do not think it necessary to enter into any elaborate argument on this point, for in the presence of a general