#### T. A. HYSON, Trading as The Capital Fireproofing Supply Company, *vs.*THE GENERAL FIREPROOFING SUPPLY COMPANY.

*Practice Act of Baltimore*Gity: *affidavit of defendant; dilatory pleas; default. Extension of time for filing pleas.*

Speedy Judgment Acts ought not to receive such a construction as to furnish a defendant the means of preventing a speedy judgment against him, without having any meritorious defense, excepting in so far as such construction is necessary for his protection, or in so far as it be required by the language used. p. 234

There is no necessary inconsistency between a dilatory plea and the affidavits required by such acts. p. 234

The affidavit required of the defendant by the Practice Act of Baltimore City is no part of the pleading. p. 234

And the reference to the merits, required by the act to be stated in the affidavit, does not have the effect of waiving a dilatory plea. p. 234

The Practice Act of Baltimore (sec. 381 of the Baltimore City Code of 1906) does not abolish dilatory pleas in action's brought under it, but dilatory pleas can not suppress or abolish the act. . p. 234

If a defendant, for any reason, can not make the required affidavit until his pleas in abatement are disposed of, or if *231justice demands that be be not required to file the affidavit until after that time, the court may, under the provisions of the act, extend the time for filing such pleas and affidavit. p. 236

A defendant who merely files dilatory pleas in a suit brought under the Baltimore Practice Act is in default if he does not file such an affidavit as the act requires. p. 236

The defendant in a suit filed dilatory pleas, merely raising the question of the accuracy of the name under which he was sued; he also filed an affidavit stating that the pleas were true in substance, etc., and that he believed he would be able to produce sufficient evidence to support said pleas, and that he was advised by counsel to file the said pleas under oath. There was also a certificate of counsel that he had advised the defendant to make the above oath and file said pleas. But the affidavit did not admit what part, if any, was due, and what part disputed. A motion of the plaintiff for judgment by default for want of sufficient pleas and affidavit was granted, and the judgment was affirmed on appeal. p. 236

*Decided January 11th, 1912.*

Appeal from the Baltimore City Court (Doblee, J.).

The cause was argued before Boyd, C. J"., Peabce, Bueke, Thomas, PatttsoN, Henee and Stockbbidgke, JJ.

*Daniel 8.*Sullivan, for the appellant.

*E. McQlure Bouzer*(with whom was *Harry N. Aber-crombie,*on the brief), for the appellee.

Boyd, C. J.,

delivered the opinion of the Court.

The G-eneral Fire Proofing Company, a body corporate, sued “T. A. Hyson, trading as the Capital Eire Proofing Supply Company,” under the Pule Day Act of Baltimore City. The action was commenced on the 27th day of February, 1911, and, although the record does not show the return day, we *232suppose it was tbe second Monday, being tbe 13tb day of March — as that was tbe next return day after tbe suit was broug’bt. On March 24th tbe defendant made a motion for a rule security for costs, and it was ordered that tbe rule be laid,- unless cause to tbe contrary be shown on or before tbe 20th of April. On tbe 24th of March tbe time for filing-pleas was extended until five days after tbe rule security for costs was complied with, and on tbe 31st of that month tbe plaintiff gave tbe security. On tbe 5th of April tbe defendant filed two pleas — the first of which is, “That the defendant is sued by tbe name of T. A. Hyson, whereas bis true name is Thomas A. Hyson,” and tbe second, “That be is not now trading as tbe Capital Fireproofing Supply Co., and that be never did trade as tbe Capital Fireproofing Supply Co., but that together with one Herbert U. Eastwood, of Washington, D. 0., be traded in tbe City of Washington, District of Columbia, as the Capital Fireproofing Supply Co.” An affidavit of Thomas A. Hyson was filed, stating “That tbe pleas above pleaded are true in substance and in fact; and further that be, tbe affiant, verily believes that be will be able to produce sufficient evidence to support tbe said pleas and that be is advised by counsel to file the said pleas under oath.” There is also a certificate of counsel that be -advised tbe defendant to make tbe above oath and file tbe said pleas.

On April 21st tbe defendant made a motion for a *non pros.*on tbe ground that tibe plaintiff bad not filed its replication within fifteen days, and tbe plaintiff, having‘been required to-show cause why tbe suit should not be *non prossed,*filed an answer to tbe petition, and moved for judgment by default against the defendant for wánt of sufficient pleas and affidavit of defense, as provided by tbe statute. That resulted in a judgment by default being ordered by tbe Court, and from that order tbe defendant appealed.

The important question in tbe case is whether tbe filing of tbe pleas in abatement ánd tbe above affidavit prevented *233a judgment by default under the Rule Day Act — no other pleas or affidavit having been filed than those above mentioned. We need not discuss the sufficiency of either of the pleas in abatement, as such, but will for the purpose of the discussion assume them to be sufficient. This precise question has not been passed on by this Court, although we have had many cases before us presenting different questions which have arisen under the Rule Day Act of Baltimore City and similar acts in some of the counties, but it seems to us that the language of the act, taken in connection with its objects, furnishes a plain and decisive answer. If the plaintiff does what is required of him under the act, as to which the record in this case raises no question, he is by the statute entitled to judgment “on motion, in writing, at any time after fifteen days from the return day to which the defendant shall have been summoned, although the defendant may have pleaded unless such plea contains a good defense, and unless the defendant or some one in his behalf shall, under oath or affirmation, state that every plea so pleaded by the defendant is true; and shall further state the amount of plaintiff’s demand, if anything, admitted to be due or owing, and the amount disputed, and further that the affiant verily believes the defendant will be able at the trial of the cause to produce sufficient evidence to support the plea as to the portion disputed, and that he is advised by counsel to file the said plea; and such plea shall he accompanied by a certificate of counsel that he so advised the party making such oath or affirmation.” Then other provisions follow which we need not quote.

Chief Judge Alvey said in *Gemmell*v. *Davis, 71*Md. 458, “The obvious purpose of the act is not only to furnish a short and expeditious method of recovery in the class of actions mentioned, but, by requiring disclosure under oath, as to the real amount or matter in dispute or actual contest between the parties, to avoid unnecessary trouble and expense in the trial. And while the construction of the statute should he *234snob as to afford to every defendant a full and fair opportunity to make all bis defenses to tbe action against him, no such restrictive construction as against tbe rights of tbe plaintiff should be adopted as would, to- any extent, defeat or frustrate tbe beneficial objects contemplated by tbe legislature.” Or as was said by Judge StoNE in *Adler*v. *Crook,*68 Md. 494, “Tbe object of tbe act was, in cases to- which it applied, to obtain from both plaintiff and defendant a definite and sworn statement of both the claim and defense (if any), so that tbe parties might know exactly wherein they differed and shape their action 'accordingly.”

Although we will not say that tbe Rule Day Act intended to prevent dilatory pleas from being filed, such pleas are not held in favor even in ordinary actions, and they should not be permitted to “defeat or frustrate tbe beneficial objects contemplated by tbe legislature”, when it passed tbe Rule Day Act. It ought not to receive such a construction as will furnish a defendant tbe means of preventing a speedy judgment against him, if be has no meritorious defense, excepting in so far as such construction be necessary for bis protection or be required by tbe language used. In short, while tbe Rule Day Act did not abolish dilatory pleas in actions brought under it, dilatory pleas cannot have tbe effect of abolishing or suspending that act. ' There is no necessary inconsistency between a dilatory plea and what tbe act requires to be in tbe affidavit, for it is well settled that the affidavit is no pant of tbe pleadings, *Laubheimer*v. Naill, 88 Md. 174; *Councilman*v. *Towson Bank,*103 Md. 469, and hence such reference to tbe merits as is required by tbe act to be stated in tbe affidavit cannot have tbe effect of waiving a dilatory plea, as tbe filing of a plea in bar would have.

Tbe appellant cited tbe notes to 1 Poe, secs. 383 and 594, and Art. 75, sec. 24, sub. sec. 84 of tbe *Code*of 1904, as tending'to show that tbe affidavit filed by him was sufficient. Mr. Poe in bis note to see. 383, in speaking of tbe *235affidavit to a plea in abatement, said, “The affidavit should be that the plea is true in substance and in fact, and if the suit be in the City of Baltimore, under the Hule Day Act of 1886, Ch. 184, *Code P. L. L.*Art. 4, sec. 167, it should contain the further averment that the ‘affiant believes that at the trial the defendant will be able to produce sufficient evidence to support the same.’ ” And in the note to sec. 594 what the affidavit should aver is repeated in substance and there is added, “and that he is advised by counsel to file the said plea, and the plea must be accompanied by a certificate of counsel that he did so advise the filing thereof.” The foot note in the Code referred to says, “The affidavit should also contain the averment in the form prescribed by any special law. Such, *e. g.,*as ‘that the affiant verily believes that the defendant will be able to produce sufficient evidence to support the same, and that he is advised by counsel to file said plea under oath.’ ” It is manifest that Mr. Poe did not mean that what he stated in either of those notes was all that would be required, as he mentioned some requirements in the note to section 594 which were not mentioned in the one to section 383, but he was only giving examples of what should be stated, as his note to the section in the Code referred to plainly shows.

It would be difficult to understand why a defendant should be required to file, in addition to the affidavit to pleas in abatement prescribed by the Code, an affidavit including some of the requirements under the Pule Day Act., and not others. It was doubtless intended by the legislature either that the whole of the act should be applicable to pleas in abatement, or that none of it should be — not that a part of it should, and the rest not. There is nothing in the act which admits of any other construction, and it certainly does not contemplate allowing a defendant who does not dispute any part of the plaintiff’s claim more time than one who does. It has been decided in a number of cases that an affidavit which does not state “the amount of plaintiff’s *236demand, if anything, admitted to be due or owing, and tbe amount disputed,” is defective. See *Adler*v. *Crook,*68 Md. 494, where the general issue pleas were filed, *Hutton & Co.*v. *Marx Bros.,*69 Md. 252, where there was a plea of the statute of limitations in addition to the' general issue pleas; *Baltimore Publishing Co.*v. *Hooper,*76 Md. 115, where the affidavit “that the defendant does not admit any of the plaintiff’s claim to be due and owing,” was held not sufficient, and other cases which might be cited. The affidavit in this'case did not comply with that requirement and hence was defective.

No reason occurs to us why that and other requirements of the statute can not be complied with, when pleas in abatement are filed. If in point of fact the defendant does not dispute any part of a plaintiff’s claim he can ordinarily accomplish nothing by filing dilatory pleas, unless it be delay, and that should not be encouraged. If, however, there be any reason why a defendant can not make the required affidavit until his pleas in abatement are disposed of, or if justice demands that he be not required to file the affidavit until after that time, the statute furnishes ample protection by providing “that the Court for good cause shown, may, by its order in writing, passed at any time beforé judgment, extend the time for filing such pleas and affidavits, which extension shall suspend until the expiration thereof, the plaintiff’s right to enter judgment under this section.”

So without further prolonging this opinion, we will affirm the judgment appealed from, as we are satisfied the appellant was in default for not filing such an affidavit as the Rule Day Act requires.

*■Judgment a-jjirmed, the appellant to pay the costs.*