Consumers' Brewing Co. v. Tobin

D.C. Circuit

Consumers' Brewing Co. v. Tobin

18 App. D.C. 584, 1901 U.S. App. LEXIS 5089

CourtCourt of Appeals for the D.C. Circuit

DecidedNovember 6, 1901

DocketNo. 1122

StatusPublished

This text of 18 App. D.C. 584 (Consumers' Brewing Co. v. Tobin) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Consumers' Brewing Co. v. Tobin, 18 App. D.C. 584, 1901 U.S. App. LEXIS 5089 (D.C. Cir. 1901).

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Opinion

Mr. Justice Shepard

delivered the opinion of the Court:

,0n the argument, counsel for the appellant concedes the sufficiency of the affidavit in respect of the credit claimed, and makes the statement that he had admitted the same in the hearing below. The record, however, was not made to show the admission and the case stands upon the sufficiency of each defense set out in the affidavit.

As the several items composing the credit have been set out in the affidavit with unquestioned certainty of statement, the order refusing the motion for judgment must necessarily be affirmed, without regard to the question of the sufficiency of the allegations in respect of the grounds of defense to the note.

The case is one at law, and the particular procedure is under an authorized rule of court designed to prevent delay hy cutting off the regular jury trial to which the party is entitled at common law, unless he shall make, “ along with his plea, if in bar., an affidavit of defense denying the right of the plaintiff as to the whole or some specified part of his claim, and specifically stating also, in precise and distinct terms, the grounds of his defense, which must he such as would, if true, be sufficient to defeat the plaintiff’s claim in whole or in part.”

For these reasons we are not at liberty to permit an amendment, or an admission of record accomplishing the same purpose, in order that the question arising on the remainder of the affidavit may be separately and singly considered and determined.

The order denying the motion for judgment will, therefore, be affirmed, for the reason given, without intimating an opinion in respect of the sufficiency of the affidavit in so far as it relates to the ground of defense to' the note.

The order is affirmed, with costs.

Affirmed.

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Mr. Justice Shepard

delivered the opinion of the Court:

,0n the argument, counsel for the appellant concedes the sufficiency of the affidavit in respect of the credit claimed, and makes the statement that he had admitted the same in the hearing below. The record, however, was not made to show the admission and the case stands upon the sufficiency of each defense set out in the affidavit.

As the several items composing the credit have been set out in the affidavit with unquestioned certainty of statement, the order refusing the motion for judgment must necessarily be affirmed, without regard to the question of the sufficiency of the allegations in respect of the grounds of defense to the note.

The case is one at law, and the particular procedure is under an authorized rule of court designed to prevent delay hy cutting off the regular jury trial to which the party is entitled at common law, unless he shall make, “ along with his plea, if in bar., an affidavit of defense denying the right of the plaintiff as to the whole or some specified part of his claim, and specifically stating also, in precise and distinct terms, the grounds of his defense, which must he such as would, if true, be sufficient to defeat the plaintiff’s claim in whole or in part.”

For these reasons we are not at liberty to permit an amendment, or an admission of record accomplishing the same purpose, in order that the question arising on the remainder of the affidavit may be separately and singly considered and determined.

The order denying the motion for judgment will, therefore, be affirmed, for the reason given, without intimating an opinion in respect of the sufficiency of the affidavit in so far as it relates to the ground of defense to' the note.

The order is affirmed, with costs.

Affirmed.

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Bluebook (online)

18 App. D.C. 584, 1901 U.S. App. LEXIS 5089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/consumers-brewing-co-v-tobin-cadc-1901.