Steward v. Hotchkiss

2 Cow. 634

Opinion

Curia.

This plea is false in fact beyond all doubt, and there is some difficulty in saying whether it should be answered, or is demurrable. Notwithstanding the legal question which arises upon its face, we should suffer it to stand upon a very slight suggestion of its truth : none such is made. Its falsehood is conceded, and we will not suffer the plaintiff to be placed in danger of a trap, by requiring him to elect whether he will answer or demur to a plea which is not plainly valid in law upon it face, and at the same time is admitted to be untrue in fact. Take your rule.

Rule to strike out the second plea.

(a)

Richley v. Proone, H. T. 1823, K. B. 1 Barnwell & Creswell, 286.

Declaration for use and occupation. Plea, that after the making of the promises, and the accruing of the several causes of action in the declaration mentioned, and before the exhibiting of the plaintiff’s bill, the defend ant delivered to the plaintiff one ton of Riga hemp, and 100 weight of Rus* sia tallow, of the value of 30Z. in full satisfaction and discharge of the promises in the declaration mentioned, and that the plaintiff accepted the same of tne defendant, in full satisfaction and discharge of the several promises and causes of action in the declaration mentioned, and of all damages, &c and concluded to the Court. A rule nisi had been obtained by Platt, that the plaintiff might sign judgment, as for want of a plea, on an affidavit stating that the plea was in every respect false.

E. Lawes, showed cause, and contended that this was a plea in common use, and that the Courts had never gone the length of saying that a party might not use a plea for the purpose of delay, provided he did not put the opposite party to the unnecessary expense of consulting counsel, by pleading pleas which require different modes of trial.

The Court, without assigning any reasons, made the rule absolute.

Note. This case was heard and determined at the sittings after the term, in the absence of Abbott, C. J.