Patten v. Harris

Headnote

After a demurrer to a declaration is adjudged frivolous, the court reluctantly give leave to a defendant to plead anew ; in this case leave was given on an affidavit that the demurrer was put in in good faith, that the defendant had a defence on the merits, and that unless he was permitted to plead to the count demurred to, the whole cause of action would stand confessed upon the record.

It seems, that a demurrer put in, not with a view of disposing of the case on the merits, but solely in the hope of its proving successful, cannot properly be said to have been put in bona fide.

The defendant put in a demurrer to one of the counts of the plaintiff’s declaration, which the court at the last general term pronounced to be frivolous, and gave judgment for the plaintiff refusing leave to the-defendant to plead anew. On suggestion of counsel, however, permission was given to make a special application to the court for leave to plead anew, on notice to the opposite party. An affidavit was now read that the demurrer was interposed in good faith, and an affidavit of merits was produced ; it also appeared from the record, that although there were pleas to other counts, still, unless the defendant was permitted to plead to the count demurred to, the whole cause of action would be confessed.