Scarlett v. Academy of Music

Alvey, J., delivered the opinion of the Court. I. The first exception taken by the defendant in this case, was to leave given the plaintiff to amend its declaration in open Court, during the progress of the trial, and after the close of the evidence, by inserting certain words in the declaration, to which the defendant had pleaded. The amendment was made, and the trial proceeded. As to the power of the Court to allow the amendment to be made at that stage of the trial, we suppose there can ²⁰⁸ be no question.

The Code, Art. 75, secs. 23 and 24, gives the amplest power to allow any amendments to be made at any time before the jury retire to make up their verdict, in cases of jury trial, and in cases of demurrer and other trials, before the Court, at any time before judgment is entered; and it is declared that no continuance shall be granted, upon amendments made, but that the case shall proceed as if there had been no amendment, unless the Court be satisfied that the ends of justice require a continuance. The particular objection here, as we understand it, was to the mode of making the amendment; that is, by inserting or interlining the amendment in the original déclarátion on file.' But this is the constant practice, and it has been expressly sanctioned by this Court, in the case of Lohrfink vs. Stile, 10 Md., 535 , where it was said by the Court, that “the amendment must actually be made, either by altering the declaration in the cause, or by filing a new one.” In regard to this question, however, it is proper to say, that the allowance of an amendment, provided it be within the power of the Court granting the leave to make it, is not the subject of an exception, nor of review, by this Court. This has been repeatedly decided. Ellicott vs. Eustace, 6 Md., 506 ; Warren vs. Twilley, 10 Md., 39 ; Calvert vs. Carter, 18 Md., 108 . 2.

By the second exception of the defendant, it appears that his subscription to the stock of the plaintiff was coupled'with the condition, that it should not be binding until stock amounting in the aggregate at par to $200,000 had been subscribed. And after giving in evidence the subscription list, embracing the subscription of the defendant, the plaintiff, for the purpose of showing the amount that had been subscribed to the stock, offered to prove by Mr. Cohen, its treasurer and secretary, that payments to the sto'ck had been actually made to the amount of about ²⁰⁹ §260,000, and the witness furnished a list of the subscribers to said stock who liad paid their subscriptions, the amount paid by them being set opposite their respective names. To the admissibility of all this evidence the defendant objected, but the Court overruled the objection, and allowed the evidence to be given. It is not easy to perceive the ground upon which this exception was taken.

It is not stated that Mr. Cohen’s evidence was at all dependent upon the list of subscribers exhibited by him; nor that the list itself was a copy, or that it was not an original list. If Mr. Cohen had independent personal knowledge of the amount of stock paid in, which the language of the exception would seem to import, or if the list exhibited was an original list made by him, from his personal knowledge of the facts therein stated, there is no principle that would exclude such evidence. As therefore, there is nothing stated in the exception to show that the facts proposed to be proved by the witness were not within his personal knowledge, or that the list used was of a secondary character of evidence, this Court is of opinion that there was no error in admitting the evidence offered; it being incumbent upon the party objecting to the admissibility of evidence to show such state of facts as would render the evidence objected to inadmissible. 3. The third exception was taken to the admissibility of the evidence offered to show that the plaintiff, by its board of directors, had made regular calls upon the stock subscribed ; and the point of the exception seems to have been, that the book, or record