Oakley v. Devoe

Headnote

Special pleas, if false, will be stricken out on motion.

Motion to strike out false and sham pleas. The declaration contains the common money counts, with a copy of a note for the payment of money, made by the defendant, attached, ■according to the statute. Laws of 1832, p. 489. The defendant pleaded, 1. The general issue; 2. That the note attached to the declaration was delivered to the plaintiff, and accepted by him on account of the moneys demanded ; 3. That the note was accepted in satisfaction, and before suit transferred by the plaintiff to the Bank of America ; and 4. That parcel of the moneys claimed by the plaintiff, to wit, the sum of, &c. is founded upon J;he same note which was obtained by the plaintiff without consideration, and is held by him without legal or sufficient consideration. The plaintiff made affidavit that the special pleas were false, and moved that they be stricken out

In opposition to the motion, it was urged, that by the revised statutes, a defendant may plead as many several matters as he thinks necessary for his defence, subject to the power of the court to compel him to elect, by which plea he will abide where he pleads inconsistent pleas, 1 R. S. 352, § 9; that the law in this respect is altered from what it was heretofore, when several matters could be pleaded only with the leave of the court. 1 R. L. 519, § 10. An affidavit of the truth of the pleas would be a perfect answer to the motion, but a party is not bound to verify his plea, except when it is a plea in abatement or other dilatory plea. 2 R. S. 352, § 7. In England, it is now settled law, that a plea will not be stricken out merely on the ground of its falsity, the courts there holding that they cannot try the truth of pleas upon affidavit. 2 Barn. & Cres. 81. 4 Bingh. 512. 1 Chitty’s R. 524, and note a. The plaintiff here cannot allege the danger of being entrapped by a course of special pleading, the pleas presenting plain and distinct defences, upon which he may

take issue or demur; nor can he complain of delay, as the note on which he relied for a recovery has not been due three months. This case is not like that of Brewster v. Hall, 6 Cow-en, 34, the strongest case in our court upon this subject. There pleas of accord and satisfaction andpayment were stricken out as false; but it was after an inquest upon the general issue had been taken at the circuit, at which no affidavit of merits was filed ; and the court, under such circumstances, to avoid an argument on demurrer to the pleas, after it was manifest that there was no defence on the merits, struck out the pleas.