Tucker v. Ladd

4 Cow. 47

Opinion

Per Curiam.

We have been in the habit of receiving affidavits thus taken, under such circumstances.

Footnotes

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(a)

Bleeker then read the affidavit, which stated that the defendant expected to be able to prove all the material allegations in the special plea.

Curia.

We do not interfere to set aside a plea merely on the ground of its falsity, unless it be also apparent that it is intended to entrap the plaintiff; being of a doubtful character, and calling for a course of special pleading, which may compromit his rights. We said no more in Steward v. Hotchkiss. In this case, if, as insisted, the plea is plainly defective, the plaintiffs might have demurred. But it is enough that the defendant swears he expects to he atle j-0 prove pj:s plea. The motion must he denied with costs.

Rule accordingly.(b)

Vid. 1 Dual. Pr. 106, 312, 313, and the cases there cited.

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Since the decision in Richley v. Proone, (1 B. & C. 286,) which I inserted in a note to Steward v. Hotchkiss, (2 Cowen’s Rep. 637,) both the Common Pleas and King’s Bench of England have brought their practice of setting aside false pleas on motion, within the qualification which this court have acted upon in the only two reported cases going to the question ; viz. Steward v, Hotchkiss and the present case.

Young v. Gadderer,, (M. T. 1823, 1 Bing. 380,) was an action on a bill of exchange, to which the defendant pleaded a judgment recovered for the same debt.

Pell, Serjt. upon an affidavit which showed that- this plea was not r.egort; ed to till the 25th of November, after the defendant had succeeded in gaining time and deluding the plaintiff during the preceding part of the term by repeated promises, to pay, moved that the plaintiff might- be at liberty to set aside this, as. a sham plea, and sign judgment. He referred to Richley v. Proone, (1 B. & C. 286,) where to an action of use and occupation, the defendant having pleaded the delivery of a. ton. of Riga, hemp in satisfaction, the court permitted the plaintiff to sign judgment; no -longer requiring for the ground of interference, as in Barclay v. Godslake, (2 B, & A. 199,) that the. plea should- be so far ingenious as to occasion perplexity and expense to the plaintiff.

Park, J.

There is no ground for our interference, in tire present qase. The principle which has generally been acted upon in the Court of King’s Bench is, that if the plea, being false, be also such as to demand different modes of trial, or so ingenious as to occasion perplexity and expense to the plaintiff, the court, will allow him to sign judgment,. The first case on tlm subject was Solomons v. Lyon, (1 East, 369,) where the court permitted the plaintiff to amend withopt payment of costs, because the defendant had pleaded a sham plea; and with a view to discountenance such practice. In Thomas v. Vandermoolen, (2 B. & A. 197,) where the defendant had falsely pleaded payment, and a judgment recovered, the court permitted the plain-, tiff to sign judgment, because issues had been raised which required different modes of trial, and imposed on the, plaintiff an improper difficulty;, and in Bartley v. Godslake, where the defendant pleaded, that in satisfaction of the plaintiff’s claim he endorsed to him a bill’ of exchange, and had assigned an Irish, judgment; the court said," “ This being an ingenious plea, which.the, plaintiff’s attorney could not be expected.to,miderstand, would put-him to the necessity of consulting counsel, and thereby occasion, delay and, expense.” In the present, case only one. issue has been raised ; the plea is one of the most usual; and the affidavit in support of the rule does not allege, as it ought to have done, (Bones v. Purter, 2 B. & A. 777,) that the plea is-false.

Rule refused.

On the following day, Park, J. referred to Merrington v. Becket, (2 B. &, C. 81,) as confirmatory of the view the court had entertained with respect to the practice in the Court of King’s Bench.