Yingling v. Kohlhass

Goldsborough, J., delivered the opinion of this court : This -was an action brought by the appellee against the appellant,, on the 29th day of June 1857, in the Circuit court for Frederick county, to recover the sum of $150, and the interest thereon. The plaintiff below, by his nar.} declared upon a promissory ¹⁶¹ note given to plaintiff’s intestate',- to secure the payment of the above sum; also for money lent and advanced-, and in the third count for a similar sum on an account stated. The defendant pleaded',- 1st,- that he never promised as alleged; 2nd, to the first count, that he is not, and never was indebted as alleged; 3rd-, to the 2nd and 3rd counts, that he is not now, and never was indebted as alleged. At the trial, the plaintiff failing to produce the note' declared on, undertook to-account for its1 absence, by giving evidence of its loss, and that diligent search had been made for it but it could not be found.

He then-offered the testimony of Benjamin1 A. Cunningham and Arthur Delashmutt, mentioned in the record, to prove the defendant’s admissions, both for the purpose of establishing the contents of the note in question and to sustain the second count in' his nah. In the progress of the cause, seven bills of exception were taken to the' rulings of the court. Two of th’em present questions in relation to the admissibility of evidence offered' on the part of the defendant; the third, fourth, fifth and seveiith, upon the refusal of the court to grant the defendant’s prayers, and the sixth,- upon the prayer of the plaintiff granted-by the court. In reviewing the rulings of the court below, as indicated by the several exceptions, we regard its action in excluding the evidence contained in the first and second exception’ as correct.

The evidence in the first exception was not relevant to either of the issues. It might have been admissible under another state of pleading: but, under the Act of 1856, ch. 112, if the defendant means to rely upon an arbitrament and award, it is necessary to plead it specially. The evidence in the second exception was also irrelevant and properly rejected. It could not tend to prove any of the defences upon Which the defendant relied.

It rather went to prove the loss of the note,- and’ its rejection could work no possible injury to the defendant. Before proceeding to consider the questions presented by the third exception’, it is'proper to notice an objection made by the ¹⁶² appellee’s counsel, to the form of the prayer, on the ground that it is too general under the Act of 1825, ch. 117. If the instruction asked had been, simply, that “upon the pleadings and all the evidence in the cause, the plaintiff is not entitled to recover in this action,” it would have been obnoxious to the objection made. But this general prayer is followed by particular