Robinson & Hartshorne v. Fisher — 1 Cole. & Cai. Cas. 452

Majority

p. 452

Robinson and Hartshorne v. Fisher.

Headnote

TO a declaration on a promissory note, the defendant pleaded in bar, that the assumpsit was by him and Robinson jointly, and not by him separately.^[1] The plaintiffs’ attorney considering the plea a nullity, entered a default.

Woods moved to set it aside,

and cited in support of the plea a precedent in 3 Went. 114. He said also, no plea could be treated as a nullity, unless it appeared on the face of it to be frivolous. In all other

p. 453

cases the court would drive the defendant to his demurrer.

Gr. Ogden, contra.

The matter of this plea is clearly in abatement; and if so, might# for want of being verified by affidavit, be treated as a nullity. 1 Sell. 301.

delivered by Livingston, J. This is a dilatory plea, the definition of which is, that it only delays the suit by questioning the propriety of the remedy rather than by denying the injury. Thus the injury complained of here, is not denied# but that it was committed with another. If it be a plea of this description, it wants the verification required by statute, and is therefore bad. Even as a plea in bar, I should not be for countenancing it, for it is totally out of the usual form of general issue which it was intended to try, and which would have answered as well, and furnished a record in the common form.