Majority
p. 222Michael Tally versus James A. Hamilton. Oct. Term, 1828. upon an affidavit setting forth these facts, and showing that the plea was put in under a clear mistake and misapprehension as to the circumstances of the case, but in good faith, now moved for leave to withdraw the plea. [He cited Arch. Prac. 124. 7 Taunt. R. 278. (Free. v. Hawkins) and 2 Strange, 906-960.] The motion was opposed by Mr. O’Conner, on the part of the plaintiff, who insisted, that as the plea was verified by affidavit, it could not be withdrawn.
Headnote
Where a plea in abatement has been interposed on the part of the defendant by mistake, and under a misapprehension of facts, the court will, upon a proper application, and upon prescribed terms, permit the plea to be withdrawn, notwithstanding it has been verified by affidavit.The plaintiff brought his action upon a certain agreement in writing made with the defendant, and the defendant pleaded, in abatement, the non-joinder of C. H. Hall as a co-defendant, he being a joint contractor with the defendant, and equally responsible to the plaintiff upon the agreement. The plea was verified by affidavit; but the defendant subsequently discovered that Hall, although in fact equally interested with him in the subject matter of the contract, had never signed the agreement, nor did it run in his name, although the defendant had always supposed that it was executed by him also; and with this impression he had interposed the plea in abatement.
J. P. Hall, for the defendant,
The plea, it appears, was put in under a mistake as to the facts of the case, and under such circumstances as to make the mistake natural. The court will, therefore, permit the plea to be withdrawn, notwithstanding it is verified by affidavit, for that was necessary; but it must be upon terms. The defendant must pay the costs of the motion, and such as pertain to the plea, and must plead an issuable plea without delay.
[O’Conner, Att'y for the plff. P. Hamilton, Att'y for the deft.]