Mayer v. Roche

69 A. 246, 76 N.J.L. 433, 47 Vroom 433, 1908 N.J. Sup. Ct. LEXIS 145

• Court: Supreme Court of New Jersey
• Decided: March 11, 1908
• Status: Published

Opinion

The opinion of the court was delivered by

Yoobhees, J.

This is a demurrer to a replication. The plaintiff sued the defendant, Katherine G. Eoche, to recover upon a promissory note. The declaration is the common counts with a copy of the note annexed as a bill of particulars. To this declaration the defendant filed a plea of general issue, and a special plea actio non, because “she says that at the time the promissory note referred to in the declaration of the plaintiff was signed by this defendant she was and is now a married woman,” &c.

The note is not referred to in the declaration and hence is no part of the pleading. Metzger v. Credit System Co., 30 Vroom 340; Shelmerdine v. Lippincott, 40 Id. 82.

The special plea above mentioned is therefore inapplicable to, and does not answer the allegations of, the declaration, and is consequently bad in substance. Therefore, under the fatniliar rule that judgment upon demurrer must go against the party whose pleading is first substantially defective (Brehen v. O'Donnell, 5 Vroom 408), the plaintiff is entitled to judgment.

A venire will be awarded for the trial of the issue raised by the plea of general issue.