p. 370Maury and another vs. Van Arnum.Headnote
Where there are several plaintiffs in a cause, it is no objection to an affidavit therein that the Christian name of one of them is omitted in the title.If there be several plaintiffs or -defendants in a cause, the papers may be entitled A. B. and ¡another or others, according to the fact.
Where a party moved to strike out pleas os false and frivolous, his notice not specifying any ground for the motion, and his affidavits alleging only that the pleas' tvere false ; held, he could not avail himself of the frivolousness of the pleas.
Where a plea has been duly verified pursuant to the first rule of May term, 1840, this will be a-sufficient answer to a motion to strike it out as false ; no new affidavit being required in such case.
<E. Pearson,
for the plaintiffs, moved to strike out two "special pleas put in by the defendant, on the ground that they were both false and frivolous. The notice did not state on what ground the motion would be made, but the affidavits alleged that the pleas were false.
D. Burwell,
for the defendant, objected, that the papers could not be read, because the Christian name of one of the plaintiffs was not mentioned in the title of the cause. He said the plaintiffs, who made the affidavits, could not be indicted for perjury on account of this defect.
-Where there are several persons, plaintiffs or defendants, in a cause, the papers may be entitled A. B. and another or others, as. the case may be; ánd. if the affidavits are false, I entertain no doubt that the persons making them may be convicted of perjury. You must answer the motion:
Burwell then objected, that the plaintiffs could not move
p. 371on the ground that the pleas were frivolous, because that ground was not maintained in the papers: and as to the alleged
falsity of the pleas, he read an affidavit showing that the pleas, when served, were duly verified by affidavit pursuant to the first rule of May term, 1840. (22
Wendell, 644,
note.)If the plaintiffs intended to move on the ground that the pleas were frivolous, they should have said so in the notice of motion—especially in a case like this, where the defendant was informed by the affidavits, that the motion was to be made on the ground that the pleas were false.
The other ground for moving must also fail. When the pleas have been dulyverified, pursuant to the first rule of May term, 1840, there can be no use in a motion to strike them out on the ground of falsity. We do not try this matter upon affidavits, and it is enough that the defendant has once sworn to the truth of the pleas.
Motion denied.