Poland v. Chessler

Akkins, J., delivered the opinion of the Court. The appellant and appellee are father and daughter. The suit was on a check alleged to have been given by the former to the latter on the occasion of her marriage. The narr. contained the common counts, and the following special count: “7.

And for that the defendant on or about the otl: day of January, 1922, passed and delivered unto the plaintiff a check drawn on the Old Town National Bank of Baltimore, for the sum of fifteen hundred dollars ($1,500.00), which said sum was then and there given as a consideration for her marriage. That at the time of the defendant delivering the said check to the now husband of the plaintiff the said defendant requested that the plaintiff hold tho said check for a few weeks, which she did; that the plaintiff kept her promise and married, hut the defendant has failed to keep his promise in that he has refused and does now refuse to make good said check or to pay unto the plaintiff the sum of fifteen hundred dollars, the amount promised, as evidenced by the said check. “And the plaintiff claims the sum of $2,500.00.” The suit was brought under the Speedy Judgment Act, and annexed to the narr. was a check dated January oth, 1922, to the order of I. Poland, for $1,500, and an affidavit, as required by said act. The defendant pleaded the general issue pleas, and an additional plea, as follows: “3. And for additional pleas to the 7th count of the declaration the defendant says: “(1) That the signature to the alleged check described in the 7th count of the declaration and attached to the declaration was not written by him or by his authority. “(2) That he, the defendant, denies that he executed the check described in the said 7th count of the declaration and attached to the declaration.” ⁶⁸ Annexed to the plea was an affidavit of defendant under the Act of 1886, eh. 184, and certificate of counsel that he advised the defendant to make the oath, and to file the pleas.

Plaintiff demurred to the third plea, and the demurrer was overruled, whereupon plaintiff joined issue on the first and second pleas and traversed the third. Defendant demurred to the replication to the third plea, the demurrer was overruled, and issue was then joined on the replication to the third plea. The case was tried before the court without a jury. After the testimony was all in, plaintiff ■ asked leave to amend her declaration by filing an additional count, to which defendant objected, but the objection was overruled, and leave granted to file the additional count.

Whereupon plaintiff filed an additional count, as follows: “8. And for that the defendant, on or about the first day of, Jariuary, 1922, passed and delivered unto the plaintiff a check drawn on the Old Town National Bank of Baltimore for the sum of fifteen hundred dollars, but did not pay the same.” WTbereupon defendant moved that plaintiff be required to elect whether she would proceed under the seventh count or the eighth count of the plaintiff’s declaration, which motion was overruled. Defendant’s first prayer asked for a directed verdict in favor of defendant on the ground that there was no evidence legally sufficient to entitle the plaintiff to recover. This prayer was refused.

This appeal is from the judgment on a verdict in favor of plaintiff. There are four bills of exception. The first was to the overruling of defendant’s objection to the amendment of the narr. by adding the eighth count. The second to the refusal to require plaintiff to elect whether she would rely upon the seventh count or the eighth count in the narr.

The third, to the refusal to strike out testimony tending to show that the consideration for the alleged check ⁶⁹ was the marriage of the plaintiff to her husband, said testimony having been taken subject to exception. The fourth, to