Lewis v. Watkins — 6 Hill & Den. 230

Majority

p. 230

Lewis vs. Watkins.

Headnote

Where a plea consists of two branches, one of which concludes to the country, and the other with a verification—e. g., a plea of non-assumpsit as to part of the demand, and of tender as to the residue—it need only be accompanied by an affidavit of its truth, without adding a general affidavit of merits.

A defendant who obtains permission to plead as matter of favor, must take care to plead rightly, for he cannot afterward amend without leave of the court. Per Bronson, J.

Accordingly, where the defendant, after issue joined, obtained leave to withdraw his plea and put in a new one within ten days; held, that he could not amend his second plea of course, under the 23d rule.

In assumpsit, after the cause was at issue, the court, on the defendant’s motion, allowed him to withdraw the plea of nonassumpsit and plead a tender before suit brought, provided he pleaded and paid costs within ten days. The terms were complied with, and the defendant interposed a plea of tender, to which the plaintiff demurred. Eighteen days afterwards, the defendant served an amended plea by mail, which the plaintiff’s attorney refused to receive, and returned it, assigning his reasons; and he subsequently entered the defendant’s default. The amended plea was non-assumpsit as to all the promises in the declaration except the sum of $104,50, concluding to the country, and, as to that sum, tender before suit brought, concluding with a verification. Accompanying the plea was an affidavit by the defendant that “ he verily believes the plea to be true in substance and matter of fact.” There was also an affidavit of the defendant’s attorney.

S. J. Cowen, for the defendant,

moved to set aside the default for irregularity.

W. Hunt, for the plaintiff.

As one part of the plea concluded to the country, and another part with a verification, there should have been an affidavit of merits, as well as an affidavit of the truth of the plea. ( 22 Wend. 644 , note.) And besides, this

p. 231

was not a case where the defendant could amend of course, under the 23d rule.

There was but one plea, though, for the purpose of covering the whole declaration, it consisted of two branches. I think it was sufficient to verify the truth of the plea without adding an affidavit of merits. The first rule of May, 1840, requires a more pointed affidavit where the plea calls for an answer, and so tends to delay, than where it concludes to the country. Here the main branch of the plea concludes with a verification, and the defendant has therefore sworn to its truth. The affidavit goes to the whole plea, and was a sufficient compliance with the rule.

But I think the defendant had no right to amend as of course under the twenty-third rule. The case may come within the letter, but it is not within the spirit of the rule. That only applies to cases in the ordinary course of pleading. Here the defendant was allowed, as a special favor, to withdraw his plea after the cause was at issue and ready for trial, and to put in a new plea. And he was restricted to ten days for the purpose of avoiding any more delay than was absolutely necessary. By first pleading a defective plea, and then amending as a matter of course at any time within twenty days, the terms which the court imposed are in effect defeated. When the defendant gets leave to plead as a matter of favor, he must take care to plead right. If he finds it necessary to amend, he must ask leave of the court. But on the facts disclosed in the papers the defendant may be relieved on terms.

Ordered accordingly.