Manning v. Tyler

That the answer in this case is bad, within all the rules of .pleading, heretofore recognised in the courts, cannot, I think, be questioned. It consists, in effect, of nothing more than a general averment that the note on which the suit is brought is void for usury. It does not aver what the usurious agreement was; between whom it was made; the quantum of usurious interest that was agreed upon and received; nor that the agreement was intentionally usurious and corrupt. The old rule of pleading required all this particularity. Thus, in Vroom v. Ditmas ( 4 Paige 526 ), the Chancellor, speaking of the manner in which usury must be set forth in a pleading, says, “ the defence must be distinctly set up in the plea or answer, and the terms of the usurious agreement, and the quantum of the usurious interest or premium, must be distinctly and correctly set up.” See also, to the same effect, New Orleans Gas Company v. Dudley ( 8 Paige 452 ); Curtis v. Masten (11 Id. 15), and numerous other cases. In the case of the New Orleans Gas Company v. Dudley, the Chancellor, speaking of an answer thus bald and deficient in these essential elements, says, that such a pleading would certainly be considered bad, both in form and substance, if pleaded as a defence to a suit upon a bond or evidence of debt, in a court of law.

Under our present system, which requires the facts constituting a defence to be plainly and concisely set forth, this rule cannot be deemed to be relaxed; and so are the cases, Fay v. Grimstead ( 10 Barb. 321 -9); Gould v. Horner (12 Id. 601). The answer, then, is bad in sub

Everything stated in this answer may be true, and yet no usury whatever have existed in the transaction; since, there may be many cases where more than seven per cent, is actually received upon a loan, and yet the transaction be entirely uninfected with usury; and the law will never presume a corrupt and usurious, nor, indeed, any other unlawful agreement, from a state of facts that-is equally consistent with a lawful purpose.

The case of Catlin v. Gunter ( 11 N. Y. 368 ) in no respect aids the defendant. That case turned entirely on the question of variance; the answer set forth the defence of usury, in a full and unmistakable manner, and cpuld not be objected to as a pleading in any form; the usury proved on the trial differed in several particulars from that alleged, but not in its entire scbpe and meaning; and the court consequently held, under the provision of the code applicable to variances and the power of amendment, that- the variance, it not having been alleged that the party was misled by it, should have been deemed immaterial. It is conceded, in the opinion of the court in that case, that if the answer had been,in general terms, that' the' note was, at its inception, negotiated upon a usurious consideration, it would have been bad for its generality. That is the whole scope of the answer in- this case.

It is insisted, that- the remedy of the plaintiff was, to move, under § 160 of the code, to^make the answer more certain and definite. It is very true, that resort might have been had to this section, if the plaintiff had elected to compel the defendant to put in an issuable answer; but' that is only one of the remedies which the law af

Such was the relief sought by the plaintiff in this case, and the court properly determined, upon a view of the pleadings, that it presented no defence, and gave judgment accordingly. The judgment should be affirmed.

(Dissenting.)—It is not now a question whether the answer ivas frivolous, but whether it set forth a defence to the action, which was sufficient in substance. The proceeding by which the plaintiff obtained judgment was analogous te the former practice, by which a party was permitted to move for judgment on account of the alleged frivolousness of a demurrer, or bill of exceptions. If the point was entirely plain, judgment was given at once, without the delay which would attend its being brought up in its regular course among the serious litigations pending in the court; but if it presented matter for argument, the motion was denied, and the case was brought forward in the usual manner. On the review of the judgment, the question ivas, whether it was erroneous in law, or otherwise, and not whether the point Avas more or less clear; nor Avhether it Avas right "to dispose of it summarily. The case alloAvs such a motion to be made, on an an-SAver or reply alledged to be frivolous, and in such cases, the allegation of friAmlousness is in the nature of a general demurrer. I have thought it necessary to make this explanation, because it has been argued, that Avhatever the merits of the answer might appear to be, upon a full examination, it was not so plainly bad, that it could be disposed of, upon a motion grounded on alleged frivolousness.

Formerly, if a plea was defective for want of particularity, but a substantial defence was presented, the objection must have been made by special demurrer. This, I think, was the case, where usury was pleaded in general terms, without setting out the particulars of the usurious contract. Hinton v. Roffey (3 Mod. 35; s. c. 2 Show. 329) was decided before the statute (4 & 5 Anne, c. 16) requiring defects of form to be specially stated in the demurrer. To debt on bond, the defendant pleaded, that it was corruptly agreed that interest should be paid for it above the rate of six per cent.; the plaintiff demurred, and judgment was given in his favor; the court saying, according to the report in Shower, that the corrupt agreement ought to be specially and particularly set forth, and the quantum of interest; otherwise, the plaintiff can never tell what to answer.

In Hill v. Montague (2 Maule & Selw. 377), which was also debt on a bond, the plea was precisely the same as in the case reported in Modern and in Shower; and the plaintiff’s demurrer assigned for cause, that it did not al

In treating of the degree of certainty required in a plea in bar, Chitty lays it down, that a general plea of usury, not stating *the particulars of the contract or the sum to be forborne, is bad on special demurrer, and he refers to this case in Maule and Selwyn (1 Chit. Pl. 527). And Saunders lays down the rule thus:—“ The chief requisite of a plea of usury is, that it should state the corrupt contract and the usurious interest, with the greatest precision and particularity, to show how the usury was committed, and that the party may know what to answer; and if it be too generally stated, it will be held bad on special demurrer. (Vol. 2, p. 895.)

In New Orleans Gas Company v. Dudley ( 8 Paige 452 ), the allegation of usury in an equity suit to foreclose a mortgage was, that there was usury in it, either by a pretended sale of property at more than its value, or in some other way. The chancellor held the allegation insufficient, and said, it would be defective in a court of law, both in form and substance. An alternative allegation of a material fact was always bad. (Steph. on Plead. 387.) Independently of this dictum, which I think does not touch the case, I have not found any authority, in which it is intimated that an allegation of usury in the contract would be bad on general demurrer, for lack of stating the particulars of the alleged usurious contract.

In the case under consideration, the contract sued on, which was a promissory -note, is set forth in the complaint. The answer alleges that the note was the last