Nelson v. Close

Bond, C. J., delivered the opinion of the Court: The appellant sued the appellee for reimbursement of assets of the estate in her hands which had been appropriated in part payment of a note on which her decedent had been maker for the accommodation of the appellee. The declaration originally contained the usual six common counts, and a seventh count which set out at length that the appellant as executrix bad opened a checking 'account in the Harford Bank of Bel Air, and that- a balance of $3,079.50 had been appropriated by the bank in part payment of a note of $4,000 ²¹⁶ of her decedent, made for the accommodation of Close and indorsed and discounted' by him at the hank. Later, the plaintiff amended her declaration by filing an eighth count, which repeated the facts in the seventh Count with some elaboration, adding an allegation, among others, that the appropriation of this balance on deposit had been made by the bank, “with the knowledge and consent of, and the authority from the said Philip IL Close.” The defendants demanded a bill of particulars of the claim, under the amended declaration, and particulars substantially the same as those set out in the seventh 'and eighth counts were filed. Defendant then demurred to the amended declaration, the demurrer was sustained, and the plaintiff, having declined to' make further amendment, final judgment was entered against the plaintiff on the demurrer.

She appeals from that judgment. In the argument in this court it was contended that the particulars had been given only of the eighth count, and that the demurrer to the whole declaration, covering the common counts as well, could not properly be sustained because the common counts remained unobjectionable and sufficient without the eighth count. On the record this is not entirely clear. The defendant demanded particulars of the claim “under the amended declaration,” and the plaintiff declared on the face of the- paper containing the particulars that they were “the particulars of the amendment to 'her declaration in answer to the d'eíendánPs demand for the particulars of the same.” And the defendant then demurred to “the amended declaration.” So it would seem that the defendant was demanding particulars of the whole declaration, including the common counts, and demurring to the same thing, and the plaintiff in complying with the demand described the p>artieulars as those of the “amendment” only.

Of course, when a bill -of particulars of the whole declaration, including the common counts, is filed, a demurrer to the whole declaration would be tested by the sufficiency of the cause of action thus particularized. Noel Construction Com ²¹⁷ pany v. Armored Construction Company, 120 Md. 237, 250 ; Thompson v. Young, 90 Md. 72, 74 ; Scott v. Leary, 34 Md. 389 . It seems dear that the plaintiff was undertaking to comply with the defendant’s demand for. particulars of the whole amended declaration, and according to our understanding of the statements of both counsel, the case was argued and disposed of helow on the -assumption that the whole cause of action was that stated in the hill of particulars. In view of these facts, we think that the discrepancy in the heading of the plaintiff’s paper