68 Md. 429 | Md. | 1888
delivered the opinion of the Court.
The declaration in this case avers “ that the defendant by an instrument of writing under seal, dated the fourteenth day of April, eighteen hundred and seventy-seven,
We are now asked to reverse that judgment and to send the case back for a, new trial, not because the appellant pretends that he has sustained any injury or because the verdict and judgment are in fact wrong; but solely on the ground that this supposed technical defect in the joinder of the issue on the plea of payment occasioned a mistrial. The plea of non est factum was bad because not verified by affidavit; but that defect was waived. The entry of “ issue' joined ” was a sufficient joinder of issue as to that plea.
There is nothing in the record to advise us that the appellant sustained the slightest injury by the mode of making up the issue on his plea of payment. It is not suggested that he was thereby prevented from offering any legally competent evidence in his possession tending to show that he had in fact paid the obligation; or that he was, in any way, embarrassed or trammelled in the proper presentation of his defence to the jury. There is no sem
We do not, however, concede the correctness of the appellant’s position that the plea of payment in actions of covenant must always conclude with a verification, and that it does not, therefore, tender an issue but requires a traverse. There is the best authority for the opposite view. In 3 Chitty’s Pl., 1001, (8th Am. Ed.,) the following form of a plea of payment in covenant is given ; viz., After the formal commencement it proceeds “ because he says, that the said defendant on the said, &c. &c. at, &c. aforesaid, did pay to the said A. B. the said sum of £- in the said declaration mentioned. And of this said defendant puts himself upon the country, &c.” The same author in vol. 1 of the same edition of his valuable work on Pleading, says, “ When there is a complete issue between the parties, viz., a direct affirmative and negative, as if the general issue be pleaded; or the■ defendant simply deny some material fact in the declaration, as where the plaintiff declares on an award, and the defendant pleads no such award; the plea should conclude to the country. And such conclusion seems to be proper, although the plea unnecessarily contain a formal traverse. This rule equally prevails whether the affirmative be first in the pleading, and the negative subsequent, or vice versa ; and therefore, though the negative be asserted by the plaintiff, and the affirmative by the defendant, as where the plaintiff in his declaration alleges a breach of non-payment of a sum of money on a. particular day, or in not repairing, &c., and the defendant pleads solvit ad diem, or that he did repair, the plea should conclude to the country; but in debt on
In Clarkson vs. White, 3 B. Mon., 316, which was an action of covenant, there were two breaches assigned in the declaration, and the defendant pleaded payment with a verification to the first breach and demurred to the second. The plaintiff joined in the demurrer, and without any judgment upon it or replication to the plea, the jury were sworn and rendered a verdict for the plaintiff. The Court after adverting to the fact that the plea concluded with a verification, and that the form given by Chitty concluded to the country, says, “ Whether it concludes the one way or the other, makes no difference as to the defence, the onus is still upon the defendant, and the same proof required in either case. The plaintiff, in his declaration, avers that the money is not paid; the defendant, in his plea, alleges payment, and the true issue in effect, which the jury try, is, whether the payment has been made or not. So, whether the plea in this case concludes to the country or with a verification, seems to be a matter merely of form.”
In Burgess vs. Lloyd, 7 Md., 196, it is said “ When new matter is alleged the party must generally verify; but where the plea produces a direct affirmative or negative, by denying the allegation in the declaration, it should conclude to the country, whether the affirmative of the issue is held by the plaintiff or defendant, and the proof of the affirmative rests on him who asserts it. * * * * It appears then, that the conclusion does not depend on the character of the averment, that is, whether it be affirmative or negative, but on the inquiry, whether the affirmation and denial form an issue.”
This declaration assigns as a breach, for which the plaintiffs bring the action, the non-payment of the sum of money named ; and that averment is distinctly traversed,
There is nothing in the case of Herbert vs. Wich, 45 Md., 474, relied upon by the appellant, to question the correctness of these conclusions. That case was an action for the continuation of a nuisance, and there was pleaded in bar a former recovery for the same subject-matter. There was no replication, but an entry on the docket of issue joined. The case was tried ex parte and after verdict and judgment a motion was filed to strike out the verdict and judgment. This motion was overruled and upon appeal this Court properly held that there had been a mistrial, for the very obvious reason that the plea of former recovery being by way of confession and avoidance of the plaintiff's cause of action, distinctly set up, as every such plea must, new matter ; and, therefore, in accordance with the fundamental rules of pleading, concluded with a
For more than thirty years a statute of this State has been in force providing that “ no judgment shall be arrested or set aside for any omission of mere matter of form;” and-this Court has repeatedly and uniformly declared that every intendment should be made in support of final judgments. Thus the policy of the law is emphatically hostile to the obstruction of justice by mere matters of form, and the strong tendency of Courts is to the discouragement of defences of a purely technical character, devoid of substance and of merit.
Being of opinion that there was no such error committed in overruling the motion in arrest, as will warrant us in disturbing the judgment, the action of the Court in overruling the motion in arrest will be affirmed.
Judgment affirmed.