McTague v. Pennsylvania & New England Railroad

44 N.J.L. 62

Opinion

The opinion of the court was delivered by

Beasley, Chief Justice.

This is an action of assumpsit, the declaration containing a special count and the common counts. To these latter counts the defendant pleaded the general issue, and put in a demurrer to the special count. Upon an application of the counsel of the plaintiff, one of the justices of this court granted an order setting aside this plea and demurrer, on the' ground that they were sham pleas, and, therefore, judgment was entered and an execution issued. The object of the present motion is to vacate this proceeding.

The affidavits which have been taken under this rule clearly establish the right of the defendant to a trial with respect to the merits' of the controversy. Nevertheless the proceedings should not be opened unless upon the equitable condition that the judgment and execution be allowed to stand as security to the plaintiff. This result has been reached in consequence of the existence of a legal flaw in the affidavit accompanying the plea and demurrer. The defect here referred to is the omission to show in this affidavit that such of the officers of the defendant as should primarily verify the bona fides of the act of putting in a defence, are absent. The statute does not permit the attorney or agent in the action to take the affidavit unless in the absence of the defendant. Rev., p. 866, pi. 114. When a corporation is defendant it should be shown, in order to validate an affidavit made by the attorney, that its officers are absent. As the agent in the action is not generally possessed of any knowledge of the matters in litigation except what he derives from his principal, to allow his oath to be substituted for that of such principal when the latter is at hand, would, in substance, convert the statutory verification of these pleadings into a mere form. For this insufficiency it was formally correct to treat the plea and demurrer as nullities and to enter judgment over them.

If the defendant desire a trial on the merits, the proceedings will be so far opened, but no further. As already stated, the judgment, execution and proceedings already taken under it will stand as security to the plaintiff.