Rich v. Boyce

Grason, J., delivered the opinion of the Court. The first exception was taken to the refusal of the Court below, to enter a judgment by default against the plaintiff, for an alleged insufficiency of his answer to the bill of discovery. Section 69 of Article 75 of the Code provides, that parties may be required ccto answer a bill of discovery only which may be filed by the second Court, after the appearance Court, in cases and under circumstances where they might be compelled to answer such bill of discovery, by the ordinary rules of proceeding in chancery; and if the plaintiff shall fail to comply with any such order to answer any bill for discovery only, it shall be lawful for the Court, on motion, to give the like judgment for the defendant, as in cases of non-suit.” The motion was properly overruled in this case, first, because the bill of discovery was not filed within the time required by the Code ; second, because no order had ever been asked for or passed by the Court; and third, because the answer filed voluntarily by the plaintiff, was in all respects sufficient, as it fully replies to the interrogatories filed by the defendant. The second exception was taken to the refusal of the Court, to remand the transcript of the record to the Superior Court of Baltimore City, from which the case had been removed for the purpose of having it corrected.

The defect, which it was alleged required correction, consisted in the statement in its beginning that the writ was sued out by Thomas R. Rich. This error in the recital of the clerk, was however corrected by the writ itself, which was set out in full, and showed upon its face that ³²⁴ it was sued out by James Boyce, and commanded the sheriff to summon Thomas R. Rich, to answer an action of James Boyce against him. The record, as it then was, showed upon its face precisely what would have appeared had it been sent back to the Superior Court for correction in this particular. The record also showed that Thomas R. Rich had appeared and pleaded to the action; had verified his plea by affidavit, in which he styled himself “the above named defendant ,” and had filed other papers in the case entitled, “James Boyce vs. Thomas R. Rich,” under these circumstances, we think that there was no necessity for correcting the record, and that the Circuit Court very properly refused to remand it.

The third, exception was taken to the overruling of the demurrer to the declaration. The defendant had been summoned by his full name of Thomas R. Rich, and in the declaration, he was described by his Christian name, and the initial letter of his middle name, and as “the defendant.” By the name of Thomas R. Rich, he had appeared and pleaded to the action, and in the affidavit to the declaration, as well as to the plea, his name is given in full. In other papers filed in the c^use by the appellant, he gives his full name and describes himself as “the said defendant.” Under these circumstances, we think he is estopped from setting up a misnomer in the narr. But, even if the objection to the narr. in this particular was a valid one, and the defendant was not estopped from availing himself of it, he could do so only by a plea in abatement, and not by demurrer. 1 Chitt.

Plead., 451; Clerk of Trustees of Taunton Market vs. Kimberly, 2 Blacks. Rep., 1122, 1123. The fourth exception is identical with the first, and what we have said in disposing of that, disposes also of this. The fifth exception is to the ruling of the Circuit Court, admitting in evidence the note upon which the suit was ³²⁵ brought.

It was contended, that there is a variance between this note and the one described in the declaration, the former containing a recital, that it was secured by three hundred shares of Parkersburg Branch Railroad Company’s stock, while the declaration does not so describe it. The above recital formed no part of the obligation, which the appellant assumed by the execution and delivery of the note to the appellee. By said note he assumed the obligation to pay four thousand, five hundred dollars, to the appellee ninety days after its date. In declaring upon a written instrument, it is not necessary to set out its very words, but it may be pleaded according to its legal effect, and only its obligatory parts need be stated. 1 Chitt.

Plead., 305; Walsh vs. Gilmor, 3 H. & J., 408 . The note was therefore legally admissible in evidence under all the counts of the declaration, without setting out in the declaration the recital that, the note was secured by the stock. The sixth exception was taken to the ruling of the Court below, refusing to permit the appellant to offer evidence of the market value of the pledged stock at the time it was pledged, as well as on the 20th day of June, 1870. This proof was offered upon the theory that the appellant, by delivering up to the railroad company the certificate of stock No. 727, and taking a certificate of the same number of shares of the same stock in his own name, had thereby converted the certificate No. 727 and the stock it represented to his own use.

By the power of attorney on the back of the certificate, which is proved to have been executed by the appellant, the appellee was authorized to have the stock transferred to his own name upon the books of the company ; and the certificate shews upon its face that this could be done in no other way than by returning the certificate to the company and having another issued to himself. The evidence offered in this exception