Coffee v. Lawrence — 2 Denio 195

Majority

p. 195

Coffee vs. Lawrence and others.

Headnote

A defendant who has been relieved from a default on condition of pleading issuably, may put in a special plea in bar concluding with a verification.

Pleas which do not go to the merits as false and sham pleas are not a compliance with the rule to plead issuably. Per Bronson, C. J.

Where the plaintiff is able to impose conditions upon the defendant he should obtain an order restricting him to a plea of the general issue or such a plea with notice of special matter. Per Bronson, C. J.

The plaintiff obtained a default for want of a plea, which on motion of the defendants was set aside on payment of costs— the defendants to- plead issuably in ten days, and take short notice of trial. . The action was trespass, and the declaration contained four counts. The defendants pleaded not guilty to the whole declaration, and a special plea to each count, justifying the alleged trespasses under a judgment and execution against the plaintiff in the N. Y. common pleas; and concluding with a verification.

H. M. Western, for the plaintiff,

moved to strike out the four special pleas, on the ground that they were not issuable pleas. He cited 1 East. 411; 3 T. R. 305; 10 Wend. 439 ; 3 John. 259 .

J. J. Ring, for the defendants,

read an affidavit that the pleas were true. He cited 5 T. R. 152; 1 W. Black. R. 376; 7 Scott, 474; 1 Tidd Pr. 484, ed. of ’28; Grah. Pr. 175; 3 Chit. Gen. Pr. 705.

When the defendant is under a condition to plead issuably, a plea in abatement, a false plea, a sham demurrer, or any other pleading which does not go to the merits, will not be a compliance with the rule. But the defendant is not restricted to the general issue. A special plea in bar, if it be true, is an issuable plea,, although it may require a replication. Here, the pleas are sworn to be true, and

p. 196

the cases cited at the bar show that there is no foundation for this motion. When the plaintiff wishes to avoid delay he should ask for an order restricting the defendant to a plea of the general issue, with notice of special matter, if the defence cannot he made under the general issue.

Motion denied.