Roth v. Baltimore Trust Co.

Parke, J., delivered the opinion of the Court. The action in this case was brought under the Speedy Judgment Act of Baltimore City (Flack’s Code of Public Local Laws, 1930, vol. 1, p. 1049, art. 4, secs. 312-322), and the declaration consists of a special count to the effect that the defendants had hy their contract in writing under seal covenanted to guarantee to the Baltimore Trust Company, the plaintiff, the payment at maturity by the Provident Building Association of Baltimore City of certain discounts of commercial paper, loans and advances made or to be made by the plaintiff to that association, during a prescribed period, but not in excess of $45,000; and that the association became and was so indebted to the plaintiff in the principal amount of $43,961.18, with interest, but had failed to pay this sum at maturity, and that, although demand had been made, the defendants had failed and refused to pay in accordance with the terms of their covenant. One of the defendants confessed on May 17th, 1929, judgment for $43,982.30; and judgment by default was obtained and extended on July 25th, 1929, for $44,016.76 against three other defendants; and John O. Roth, one of the defendants, filed on August 26th, 1929, the pleas of never indebted and never promised as alleged. The plaintiff thereupon demanded of the defendant Roth the particulars of his defense.

The defendant excepted to the laying of the rule for a bill of particulars, and this exception was overruled, and the bill of particulars was furnished. Upon the theory that the particulars of the defense were not sufficient to defeat the action, the plaintiff moved, and the trial court granted, a judgment by default, which was extended by the court for the amount claimed. On an appeal from that judgment it was decided in Roth v. Baltimore Trust Co., 159 Md. 580 , 152 A. 227 , that the general issue pleas, when filed in conformity with the requirements of the local Speedy Judgment Act, set up a good defcnsé, and thereafter the action was not within the statute, but must proceed ³⁴³ as if it liad not been brought under the statute. In holding the trial court was without power to enter the judgment at this stage of the pleadings, the court, speaking through Judge Offut-t, said: “If the plaintiff desired to question the sufficiency of the bill of particulars, he should have excepted to it (Poe, Practice, sec. 119), or, if he desired to challenge the sufficiency of the pleas as affected by the facts alleged in the hill of particulars, he should have demurred to them.

Noel Construction Co. v. Armored Construction Co., 120 Md. 237, 87 A. 1049 ; Nelson v. Close, 147 Md. 216 , 127 A. 751 . ■ But failing either to except o-r demur, he could not question the sufficiency of the bill of particulars, or the propriety of the pleas, by a motion for judgment by default, for tbe defendant was guilty of no- default. He had filed the bill plaintiff demanded, and, even if the facts alleged in it failed to constitute a valid defense, plaintiff was no more entitled to judgment by default for that reason than he would have been in an action at common law in which the pleas filed were demurrable, unless he had in fact demurred to them. The court therefore had no power to enter the judgment from which this appeal was taken, and it must be reversed. “In view of that conclusion, the question as to- whether in such a case as this the plaintiff is entitled to demand of a defendant, who has filed general issue pleas only, the particulars of his defense, does not arise, and cannot be considered." Pages 587, 588 of 159 Md., 152 A. 227, 230. On the remand of the cause, the defendant moved that the hill of particulars be stricken from the record or withdrawn (1) because the demand was improperly granted, and (2) because the defendant is entitled to defend upon additional grounds, and upon all defenses permitted under the general issue pleas.

The trial court- denied this motion, and a demurrer by the plaintiff to the general issue pleas as- made specific by tbe bill of particulars having been sustained, with leave to amend, and the defendant refusing to amend and submitting to judgment on demurrer, judgment by default was entered, and an inquisition was had and judgment duly ³⁴⁴ extended on the amount ascertained by tbe inquisition of tbe jtrry to be due tbe plaintiff. Erom tbis judgment tbe appeal is taken. Tbe defendant does not argue that there was error in tbe action of the trial court in sustaining tbe demurrer, but insists that tbe plaintiff is not entitled to demand tbe particulars when bis defense is by the general issue pleas of nunguam indebitatus and non assumpsit. Tbe question thus made is a novel one in this court, and its solution will require an examination of tbe nature and purpose of bills of particulars.

Bills of particulars are of comparatively recent origin in procedure, and grew out of a necessity to reduce to more definite and precise statement tbe general terms iff wbicb pleadings may be artificially framed. Their first use in the presentation of a demand was later extended to tbe statement of a defense. Tbe object of bills of particulars was originally to control tbe generality of tbe declaration, to restrict tbe plaintiff at tbe trial, and to give tbe defendant such information as may enable him to prepare bis defense or pay money into court, if necessary. Tbe effect, therefore, of the particulars is to restrict tbe plaintiff’s demand to tbe amount, to tbe allegations, and to the items, as stated in bis bill of particulars, and, conformably, to limit bis testimony.

Bullen & Leake, Precedents of Pleading (3rd Ed. 1868) 55, 56. Evans’ Practice (1861), pp. 256-259; Poe’s Practice, secs. 115-121. Should the declaration be on the common counts, or if tbe cause of action on a special count be not sufficiently disclosed, tbe court may, upon application by tbe defendant, require by rule laid tbe plaintiff to deliver tbe particulars of bis demand. Supra.

Tbe beginning of an action is by tbe plaintiff, upon whom tbe burden of proof commonly remains, so it is usually bis pleading wbicb requires clarification and greater precision, although a similar necessity for a bill of particulars may arise on the pleading of tbe defendant. Bills of particulars are therefore complementary procedural documents whose function is to make certain, definite, and specific tbe general ³⁴⁵ terms in which, the demand or defense of the party is stated, in order to clarify and evolve the issues of law and of fact involved in the action. Accordingly, the rule for a hill of particulars should he laid upon the plaintiff or defendant when the pleadings of either may require au amplification of his general allegations in order to make them more precise and to avoid a surprise at the trial. The rule is founded in principle and vindicated in practice.

Its use against the plaintiff is too common for the citation of authority, hut, because there is less occasion to lay the rule on the defendant, some precedents may he given of its application to the defense. If the defendant interpose a set-off or counterclaim, which is an affirmative defense, the rule is freely laid. Poe’s Practice, sees. 115, 120. So, if the defendant plead in abatement that the contract sued on was made by the defendant jointly with another, who is still living, and was not made by the defendant alone, and the plea does not disclose the place of residence, or omits the addition of such other, the plea was good at common law, and the defendant could he laid under a rule to furnish the particulars of such party’s place of abode and addition.

Taylor v. Harris (1820), 4 Barn. & Ald. 93, 106 Eng. Repr. 872; Newton v. Verbeke (1827), 1 Younge & Jervis, 257, 148 Eng. Repr. 667; 3 Chitty’s Pleading, 900 n. (g); 1 Tidd’s Practice, 636.

See 2 Evans’ Harris, Entries (1832), 20, 22. Again, the accepted form of a plea or other pleading may he of so general a nature as not to inform the adverse party of the real defense 'which he is to' meet, as in the plea of payment (a) ; or of fraud in general terms (b); or when, at common law, the defendant in ejectment was called upon to specify for what he defended that was not sufficiently ascertained by the consent rule (c). (a) Selwyn’s Nisi Prius, 137; Bullen & Leake, Prec. Pleading, 55, 56, 660, 665; Ireland v. Thompson, 4 Bing.

(N. C.) 716, 132 Eng. Repr. 965; Baxendale. v. Great Western Ry. Co., 6 H. & N. 95, 158 Eng. Repr. 40.

See Thames Shipbuilding Co. v. Royal Mail Co., 10 C. B. (N. S.) 375, 142 Eng. Repr. 497, where, in the absence of special circum ³⁴⁶ stances, particulars were refused of the parts of the plaintiff’s claim in respect of which money was paid into court. Rohr v. Anderson, 51 Md. 205, 216, 217 .

(b) Bullen & Leake, Prec. Practice (3rd Ed. 1868) 445, 585; McCreight v. Stevens (1862), 1 H. & C. 454, 158 Eng. Repr. 963; Pitts v. Chambers (1859), 1 F. & F. 684, 175 Eng. Repr. 906; West v. West (1865), 4 Swabey & Tr. 23, 164 Eng.

Repr. 1423; Jackson v. Hilles (1869), Ir. Rep. 4 Eq. 60; Marshall v. Emperor Life Assurance Soc., L. R. 1 Q. B. 35. (c) Goodright v. Rich (1797), 7 Term Rep. 327, 332; Doe d. Webb v. Hull, 7 T. R. 332 (note); Doe d.

Saunders v. Duke of New Castle, 7 T. R. 332 (note), 101 Eng. Repr. 1001, 1003; 2 Tidd’s Practice, 1231; Evans’ Practice (1867), pp. 256-258; Poe’s Practice, secs. 460, 461; Poe’s Pleading, sec. 258. The furnishing of the particulars of defense does not relieve the plaintiff of the necessity of supporting his demand by proof, and, since the plaintiff in law is bound to know, and offer in evidence, the facts which are requisite to the establishment of a prima facie right of recovery, the illustrations at common law of the particulars of defense being exacted are instances where a presumptive right of recovery is met by a defense which places the burden of its proof upon the defendant. Supra, and 1 Tidd’s Practice, 600 (star) ; Poe’s Pleading, secs. 553-556.

In short, particulars are demandable when the denial of the plaintiff’s demand involves or implies an affirmative defense expressed in general terms. Supra; Weinberger v. Inglis (1918), 1 Ch. Div. 133; La Radiotechnique v. Weinbaum (1928), 1 Ch. Div. 1; Perlak Petroleum Maatschappij v. Dean (1924), 1 K. B. 111; MacLulich v. MacLulich (1920), Prob. 439.

The practice in Maryland with respect to bills of particulars was according to the course of precedure at common law, and the first legislation apparently is an enactment, in the Code of 1860, of the following: Either party may use the common-law forms or the forms hereinbefore given, at his election, and either party may require a bill of particulars where the pleading is so general as not to give sufficient notice to the opposite party of