Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Code Rep., 43. Williams v. Sholto, 4 Sand. S.C. R., 641. Crary v. Goodman, 9 Barb. S. C. R.,657. But see section 150 of this code.

Fraud.

A defendant in a bill to get back goods obtained by fraud was compelled to make answer thereto. (Laws of 1833, p. 17; 2 R.S., 235). Siskin v. Manning, 4 Edw. Ch. R.,37. Goods Sold.

In an action for the price of goods sold, &c., against several defendants alleged in the complaint to be partners in business, one of the defendants answered that he "never was a co-partner” with the other defendants, naming them; and the answer was held sufficient to form an issue. Corning v. Haight, I Code Rep., 72.

Libel. See section 165 of this code.

Limitation Statute of. See section 74 of this code.

Partition,

An allegation in an answer in a partition suit, that the plaintiff had unreasonably refused to make partition by deed, was stricken out as irrelevant and frivolous. McGowan v. Morrow, 3 Code Rep., 9.

In proceedings for a partition under the revised statutes, the pleadings are intended to be like those in an action in which the petition shall stand for the complaint; and any thing may be pleaded which will ab te the action or bar the petitioner's right to a judgment. Reed v. Child, 2 Code Rep., 69. 4 Pr. R., 125.

Promissory Note.

In an action on a promissory note indorsee against indorser, the complaint alleged presentment and non payment, and the answer was that as to the presentment and non-payment, the defendant denied any knowledge thereof sufficient to form a belief; on motion for a judgment, notwithstanding the answer, Strong, J., denied the motion, and held that the answer was sufficieut. Dickerson v. Kimball, 1 Code Rep., 49. An answer to a complaint on a promissory note, admitting the giving the note, but alleging that the goods for the price of which the note was given, were inferior in quality to those contracted for, is bad. Castles v. Woodhouse, 1 Code Rep., 72. In an action on a promissory note, an answer that the defendant is not indebted in manner and form as in the complaint is alleged, is not a sufficient answer. Pierson v. Cooley, 1 Code Rep., 91. An answer is bad which merely alleges that the note sought to be recovered was obtained by fraud, and omits to state any facts showing the existence of such fraud. McMurray v. Gifford, 5 Pr. R., 14. Where a complaint on a promissory note did not aver the plaintiff to be the owner, and the answer admitted the allegations in the complaint, but denied that “By reason thereof" the plaintiff was entitled to judgment, the answer was held to be bad. Hozie v. Cushman, 7 Leg. Obs., 149. On a complaint against a defendant as acceptor of a drast, the defendant answered: “He denies that the defendant in the complaint mentioned, did as therein alleged, accept the draft in said complaint mentioned;” the court ordered it to be struck out. Mier v. Cartledge, 4 Pr. R., 115. In an action on a promissory note an answer of payment is not new matter Giessan v. Giessan, 1 Code Rep., N. S., 414. Usury.—An answer which alleged that said note was usurious in its inception, and that the payee knew it was executed fradulently, and to sell usuriously above the rate of 7 per cent. per annum, to wit, 1% per cent. a month, held insufficient. Gould v. Homer, 1 Code Rep., N. S., 356. Usury cannot be given in evidence under a denial of the promise to pay. Fay v. Grimsteed, 10 Barb. S. C. R. 321. Corporations, by which is meant all associations and joint stock companies having any of the powers and privileges of corporatious not possessed by individuals or partnerships, are forbidden by statute to interpose the defence of usury. Laws of 1850, cap 172, p. 334. See further, as to answers, sections 74, 150, 165, 246,247.

§ 150. [129.] (Amended 1849–1852.) Counter claim. Several defenses—The counter-claim mentioned in the last section, must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: 1. A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action; 2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action; The defendant may set forth by answer, as many defences and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. They must each be separately stated, and refer to the causes of action which they are intended to answer, in such manner that they may be intelligibly distinguished.

Before the amendment of 1852 this section read: The defendant may set forth by answer as many defenses as he shall have. They shall each be separately stated, and refer to the causes of action which they are intended to answer, in any manner by which they may be intelligibly distinuished. g The separate grounds of defense, separately stated, take the place of separate pleas. Cobb v. Frazee, 3 Code Rep., 43. 4 Pr. R., 413. The defendant must state his defenses, if he has more than one, separately. He should confess the trespass which he means to justify or avoid, or he should deny it altogether. The general issue, and a justification, as those defenses were understood under the former system, cannot be united in [the same division of] an answer. Both cannot be true at the same time. Royce v. Brown, 3 Pr. R., 391-395. “As I understand section 129 (now 150). it is a statutory inhibition against duplicity, in stating two defenses together. Each defense or ground of defense must be separately stated. And this, I think, applies to more than one defense to the same cause of action, so that, under the amended code (code of 1849), it may be doubtful whether what was matter of form before, requiring a special demurrer, is not now matter of substance. But it is not important to consider that point in this case; nor whether, if duplicity alone does not now make the answer insufficient in substance it can be demurred to at all.” Boyce v. Brown, 7 Barb. S. C. R. 80–87. A defendant may avail himself of as many defenses as he may have, but each must be separately stated, and be consistent in itself. Porter v. McCreedy. I Code Rep. N. S., 88. In an Anonymous case, 1 Code Rep., 134, Paige J. is reported to have held that the only restriction to the number of defences a defendant might interpose, was as to the manner of stating them, it being required that they should each be “separately stated.” It was no objection on the trial that they were inconsistent; but the superior court in Arnold v. Dimon, 4 Sand. S. C. R., 680, it was held that a defendant will not be permitted to set up two defenses, one of which, from its nature must be within his own personal knowledge, and is, if true, a complete defense; thus a carrier by water will not be permitted to answer, 1. That he was not the owner of the vessel, and 2. That the property shipped was delivered to the plaintiff. The head note to this case states that a defendant will not be permitted to set up two defenses which are inconsistent with each other; it will be readily observed, however, that the case goes further, as the defences offered were not inconsistent. The head note, perhaps, accurately states the practice in that court. In Schneider v. Schultz 4 Saud. S. C. R., 664, the answer denied the assault, and then set forth that if there was any assault, it arose by reason of the plaintiff having assaulted the defendant. This answer was struck out on motion, the judge saying, where the assault was put in issue the defendant could not plead a justification. The answer in that case seemed also bad, for being hypothetical; but the round on which the answer was struck out seems to have been that the defences were inconsistent. In Arnold v. Dimon, supra, Oakley, Ch., J, said, “The answer sets up two distinct defences. The first, if true, puts an end to the claim, and the fact averred is within the defendant's personal knowledge. We think the rule must be, that where sacts are alleged in an answer, which from their nature must be within the personal knowledge of the defendant, and which, is true, are a complete answer to the claim, he shall not set up in addition another state of facts not consistent with the previous defence. Here the desendants must rely upon one or the other of these defenses, and they may elect which they will retain. They cannot stand upon both. If they were not owners of the ship, it is no matter to them whether the goods were delivered or not. Is they were the owners they ought not to deny it, and if the goods were delivered, or there was some good cause for not performing their contract, let them state that defence and rely upon it.

“It may be said that the code (s. 150), authorizes the defendant to set up, by answer, as many defences as he may have. But it does not follow that “defences” and dilatory “objections” are the same. The next clause of the section shows that the legislature by defences intended, such matters as go to the cause of action. A similar provision is 2 R. S., 352, s. 9; and the distinction between pleas to the jurisdiction, in abatement, and in bar, has nevertheless, at all times been recognized and could not be pleaded together as defences to the action,” per Allen, J., in Gardiner v. Clark, 6 Pr., R. 451. Therefore, an objection in the nature of a plea in abatement (other action pending), cannot be taken in a general answer. Ib.

This was decided at general term, but we do not hesitate to pronounce the decision altogether erroneous. An answer of an other action pending is in bar not in abatement. The answer cannot give the plaintiff a better complaint, and therefore, cannot be in abatement.

§ 151. Demurrer and answer.—The defendant may demur to one or more of several causes of action stated in the complaint, and answer the residue.

After an extension of the time to answer, the defendant may put in a demurrer instead of answering. Broadhead v Broadhead, 3 Code Rep., 8, 4 Pr. R., 308. The code of 1848 had no section to correspond with this ; and it was held, under that code, that a demurrer could be interposed only to the entire complaint; and on a demurrer to a part of the complaint and an enswer to the residue, where it appeared that the complaint contained allegations which were all connected together in the statement of one entire cause of action, it was held that in joining both the issues of law and fact, there had been a mispleader—nor where a complaint contained two or more distinct causes of action, could a demurrer be interposed to a part of it. Manchester v. Storrs, 3 Pr. R., 410. Under the code of 1849 it was held, in People v. Meyer, 2 Code Rep., 49; Gilhert v. Davis, Ib. 50, that a defendant might both demur and answer to the same cause of complaint; but in Socum v. Wheeler, 4 Pr. R., 373, it was held that a desendant could not demur and answer at the same time a single cause of action in the complaint. Again, in Spellman v. Weider, 5 Pr. R., 5, it was held, that a defendant could not demur and answer to the whole of a pleading at one and the same time. In an action on a promissory note against maker and indorser, can the complaint be treated as two separate complaints, and may one defendant demur and the other answer? Ib. 19 Wend, 642. Where a defendant demurs, and answers to the same cause of action, or to the whole of a complaint, the plaintiff cannot treat the demurrer as a nullity, nor move for judgment; but he should move to strike out the answer and demurrer, or that the detendant elect by which he will abide. Spellonan v. Weider, 5 Pr. R. 5. And, per Sill, J., in Howard v. Michigan Southern Rail Road Co., 3 Code Rep., 215; 5 Pr. R., 206, an answer and demurrer to the

ame cause of action is irregular in practice, and the defendant might have been compelled to elect by which he would stand. Ib.

§ 152. (Amended 1851.) Sham defenses.—Sham and irrelevant answers and defences may be stricken out on motion, and upon such terms as the court may in their discretion impose.

The parts in italic are the amendments. It was said that “sham” was not used here as synonymous with “false;” and that it was only where the answer took issue upon some immaterial averment of the complaint, or set up new and irrelevant matter, that it could properly be called a “sham ” defence." Davis v. Potter, 4 Pr. R., 155; 2 Code Rep., 99. A “sham ” pleading does not mean any thing different to a “frivolous” pleading. Both words describe the same kind of defence, except that a frivolous answer may not necessarily imply that its object was evasion or delay. 1b. Where an answer denies, in the form and manner prescribed in the code, a material allegation of the complaint, it is not “frivolous” nor “sham.” Ib. Where in an action on two drasts drawn on and accepted by the defendants, one defendant answered, “he denies that the defendants in said complaint mentioned, did as therein alleged, accept the drafts in said complaint mentioned, or either of them. The answer was verified. The plantiff moved to strike out the answer as a sham defence, on affidavits that the drafts had been accepted by defendant's agent, and that defendant had promised to pay the same. The court granted the motion. I v. Cartledge, 4 Pr. R., 115, 116. That case however was reconsidered on appeal, and the whole question, of the right of the court to strike out an answer as false reviewed by Edmonds, J., at great length. See 2 Code Rep., 125; 8 Barb. S. C. R., 75; and see note 6 Pr. R., 360. An answer which denied a material allegation of the complaint might be struck out as false, if not verified, but if it were verified it could not. Ib. Catlin v. McGroarty, 1 Code Rep. N. S. 291; Miln v. Vose, 4 Sand, S.C., R., 660. An answer, which is shown from its falsity and palpable frivolousness to be put in for delay merely, may be stricken out as a sham defence. Darrow v. Miller, 3 Code Rep, 241. Seward v. Miller, 6 Pr. R., 313. And see Bowen v. Bissell, 6 Wend., 511. Belden v. Devoe, 12, ib. 223. Where a motion to strike out a plea as false, raises a question of law rather than of fact, the motion will be denied. Fisher v. Pond l Hull, 572. See notes to sections 160 and 247 of this code. An answer which is so framed that it does not set up a valid defence, but which states facts that may by being properly averred constitute a defence, will not be struck out as sham, irrelevant, or frivolous. Alfred v. Watkins, 1 Čode Rep. N. S., 343; but it may be demurred to. Ib. Matter is irrelevant in a pleading which has no bearing on the subject matter of the controversy and cannot affect the decision of the court. Fahricotti v. Launitz, 1 Code, Rep., N. S., 121. If the complaint does not state a case on which, if uncontradicted, the plaintiff has a right to recover, the defendant must present his objection by demurrer, and not by motion to strike out the complaint as irrelevant; and the same rule is applicable to an answer. If the whole matter of the answer is no defence to the plaintiff's claim, the answer is insufficient and not irrelevant in the meaning of the code. Ib. A sham answer and defence is one that is false in fact, and not pleaded in good faith. It may be perfectly good in form, and to all appearances a good defence. A frivolous answer is one that shows no defence, conceding all it alleges to be true. Brown v. Jennison, 1 Code Rep. N. S., 156. It is evasive in a party who has the means of information in his power, to answer that he has no information, &c., of an allegation in the complaint; and such an answer will be stricken out as sham. Hance v. Remming, 1 Code Rep., N. S., 204. An essential element of a sham pleading i. its falsity. “It seems to me, therefore, that the true rule to be adopted, is to strike out all answers or defences as sham when they appear clearly to be salse, whether they are good in point of law on their face or not.” Barculo, J., in Nichols v. Jones, 6 Pr. R., 357. It is no sufficient objection to a motion to strike out an answer as sham, that o: plaintiff has obtained an order for time to reply. Miln v. Vose, 4 Sand.S. C. R., 60. Where a motion to strike out an answer as sham and irrelevant is denied, on the ground that it is neither, but insufficient on other grounds, the defendant will be allowed to demur, although the time for serving a demurrer may have expired. Seward v. Miller, 6 Pr. R., 312. Unless the pleading be so utterly frivolous that the party ought not to be put to a demurrer. Miln v. Vose, 4 Sand. S. C. R., 660.

Aster an order has been made to strike out an answer as sham and irrelewant, the plaintiff may enter judgment in the same manner as though no answer had been put in. Aymar v. Chase, 1 Code Rep., N. S., 141 There is no answer in the case to be amended after an order has been made to strike it out, and consequently the defendant has no right to amend, although he might have applied for leave to put in a new answer.

CHAPTER IV.
The reply.

Section 153. Reply, when to be put in, and what to contain.
154. Motion for judgment upon answer
155. Demurrer to reply.

$153. [131.] (Amended 1849–1851–1852.) Reply when to be put in, and what to contain.—When the answer contains new matter constituting a counter-claim, the plaintiff may, within twenty days, reply to such new matter, denying generally or specifically each allegation controverted by him, or any knowledge or information thereof sufficient to form a belief; and he may allege, in ordinary and concise language, without repetition, any new matter, not inconsistent with the complaint, constituting a defense to such new matter in the answer; or he may demur to the same for insufficiency, stating in his demurrer the grounds thereof; and the plaintiff may demur to one or more of several counter-claims set up in the answer, and reply to the residue.

Before the amendment of 1852 this section read: When the answer contains new matter constituting defence or set-off, the plaintiff may, within twenty days, reply to such new matter, denying specifically each allegation controverted by him, according to his knowledge, information, or belief, or any knowledge or information thereof sufficient to form a belief; and may allege in a plain and concise manner, without unnecessary repetition, any new matter not inconsistent with the complaint, constituting a defence to such new matter in the answer; or he may demur to the same for insufficiency, stating in his demurrer the grounds thereof; and the plaintiff may demur to one or mere of several defences and set-off, set up in the answer, and reply to the residue. Where a plaintiff selected from the auswer several sentences forming a part of the statement of one entire ground of defence, and demurred to them, and replied to the residue of the answer, it was held, that such a demurrer would not lie, because a demurrer will not lie to a part of an entire defence in an answer. Cobb v. Frazee, 3 Code Rep., 43. 4 Pr. R., 413. The defendant might have moved to strike out such demurrer. Ib. An objection, not that unimportant matter or matter having no bearing on the controversy is mixed up with or stated in addition to that which is material, but that

[ocr errors]
« ΠροηγούμενηΣυνέχεια »