Jones v. Barnett

Robinson, J., delivered the opinion of the Court. This is an appeal from an order of the Superior Court of Baltimore city, overruling a motion to strike out a judgment ²⁶⁰ entered in pursuance of sections 6, 7 and 8, of the Act of 1864, ch. 6. The following reasons are assigned in support of the motion: 1. That the notice attached to the declaration, requiring the defendant to plead thereto, within fifteen days, took the case out of the operation of the statute.

A party has the election either to bring his suit in the ordinary way or under the provisions of the Act of 1864. If under the latter, and the cause of action be a contract, the plaintiff, on filing with his declaration an affidavit stating the true amount of indebtedness, together with the cause of action by which the same accrued, is entitled to a judgment on the first day of the term, or at the return day, next succeeding the appearance of the defendant, whichever shall first occur, unless the defendant shall file a plea, containing a good defence, and make oath that the said plea is true, and that he verily believes he will be able at the trial of the cause to produce sufficient evidence to support the same. In. this case, the suit was brought on an account, and the plaintiffs filed with the declaration the affidavit prescribed, together with the account by which the indebtedness accrued. The requirements of the Act were thus fully complied with on their part.

The defendants filed their plea within the time prescribed, and both parties seem to have regarded the suit as having been brought under the Act of 1864. It is not pretended the defendants were misled by the notice thus attached to the declaration, into the error, of supposing that the action was brought in the ordinary way, or that their rights were in any manner prejudiced thereby, and we are at a loss to imagine, upon what grounds such a notice can be held to take the case out of the operation of the Act. 2. That the bill of particulars ought to have been verified by affidavit. The 8th section requires the plaintiff to make affidavit of the true amount of indebtedness, and to file at the same time ²⁶¹ the cause of action, but a bill of particulars which is furnished subsequently upon the demand of the defendant, does not come within this