Lowry v. Hall — 1 Hill & Den. 663

Majority

p. 663

Lowry vs. Hall.

Headnote

A notice of special matter accompanying a plea of the general issue, .will not be struck out as frivolous, if it contain what may plausibly be urged in bar of the action.

The main reason for striking out frivolous pleas, (viz. delay,) does not apply to a notice,

A notice, however, containing matter .palpably absurd end impertinent, - will bp stricken out.

Striking out frivolous notice of special matter. Assumpsit. Common counts. Plea, general issue, with notice of evidence, in defence, that the plaintiff had obtained a warrant of attachment Under the absent debtor act, (1 JR. 8 764, 2d ed.,) to enforce collection of the same claims for which this suit was brought, or some of them; that the sheriff attached the defendant’s property, who, for the purpose of discharging the warrant and obtaining restitution under the 55th section- of the act, gave a bond, with sureties, conditioned to pay the debt in the words of the section, on which bond an action had been brought within six months, according to § 58. (Vid. 2 JR. 8. 773, 2d ed.) .

p. 664

A. Taber, now moved to strike out the notice as frivolous.

M. T. Reynolds, contra.

No doubt, we should strike out a notice entirely impertinent, and bearing plain marks of a fraud on the statute allowing this form of pleading. The notice should contain matter having some pretence to bar the plaintiff’s claims, or a part of them. Notice of liberum tenementum, in bar of an action of assumpsit, for instance, would be struck out as palpably impertinent. But we ought not to strike out on motion, where the notice presents matter which can plausibly be urged as a defence. The main reason for striking out frivolous pleas, viz. delay, does not apply to a notice.

In this case, the notice goes on the idea that a bond; given to secure a simple contract debt, merges it. The general rule is so; and the question will be, whether the rule applies to a bond under the 55th section of the absent debt- or act. ( 1 R. 8 . 773, 2d ed.) However erroneous the idea that it does may turn out to be, we cannot say that it is palpably absurd. The notice, instead of being prolix, is barely long enough to give a distinct notion of the bar.

There is no ground for the motion; and it is denied, with costs.

Ordered accordingly.