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In Beach v. Gallup, however, 2 C. R. 66, where the complaint alleged the plaintiffs to be holders of the note sued on, but did not aver ownership, or facts amounting thereto, a demurrer on the latter ground was refused to be stricken out.
In Neesus v. Kloppenburgh, also, 2 C. R. 76, a demurrer to a complaint, alleging that “the defendant was indebted" to the plaintiff on an account for goods sold and delivered, on the ground that the conclusion of law, and not the facts, were pleaded, was likewise refused to be stricken out, and the general principle laid down, that it was only in cases where the demurrer was palpably groundless and untenable, and put in for the purposes of vexation and delay, that the court would exercise the power of expunging it from the record.
Similar principles are laid down in Rae v. The Washington Mutual Insurance Company, 6 How. 21, where it was held that, to warrant a judgment on a frivolous demurrer, “the case should be entirely clear, palpable on the statement of the facts, and requiring no argument to make it apparent;" and a motion to strike out a demurrer to the reply was accordingly denied, the questions raised being real and important.
For forms of Demurrer, see Appendix.
This pleading requires no verification. It should, however, be signed by the attorney or counsel of the defendant, and a copy served upon the adverse party, in the usual manner.
Note.-In Hall v. Bartlett, 9 Barb. S. C. R. 297, it is held that “a demurrer admits the facts which are relevant and well pleaded, but not conclusions of law.- Ford v. Peering, 1 Ves. Jun. 78, Story's pl. 452, and the cases there cited." The purchase of a mortgage by an attorney, followed up by proceedings on his part to foreclose by advertisement, was held not to be a purchase with intent to sue, within the meaning of 2 R. S. 288, sec. 71, and judgment was given for him accordingly, on his demurrer on that ground.
CHAPTER I V.
The office of this most important pleading is, to present the case of the defendant, in opposition to that attempted to be made out by the plaintiff, upon the facts of the case alone, or upon the law and the facts conjointly, according to the circumstances. It is, accordingly, the form of defence most usually adopted.
The requisites of Answer are thus prescribed by the Code, in secs. 149 and 150 :
$ 149. The answer of the defendant must contain,
1. A general or specific denial of each material allegation of the complaint, controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.
2. A statement of any new matter constituting a defence or counter-claim, in ordinary and concise language, without repetition.
$ 150. The counter-claim mentioned in the last section, must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action :
1. A cause of action, arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action.
2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.
The defendant may set forth, by answer, as many defences and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. They must each be separately stated, and refer to the causes of action which they are intended to answer, in such manner that they may be intelligibly distinguished.
These sections have been altered in several most important particulars, upon the recent amendment. The power of making a general as well as a specific denial of the plaintiff's allegations, existent under the Codes of 1848 and 1849, but abolished by that of 1851, is again restored; the power of joining legal and equitable defences in the same pleading, which had been, to some extent, a subject of doubt, is now expressly declared; and special provisions are made on the subject of counterclaim, the substituted definition for the formerly established term of set-off, which were not in the former measures. The phraseology of the sections is likewise altered in several comparatively unimportant particulars. The different cases bearing on the above subjects, will be cited in the course of the chapter.
The defendant has four courses open to him by means of an answer, when put in, any one or more of which he may adopt at his election, or all, if the circumstances admit.
1. He may demur to the complaint, for defects in law, latent in that pleading itself, but made patent by statements contained in the answer.
2. He may put the plaintiff to proof of his case, by traversing the facts alleged.
3. He may present new matter, wholly or partially avoiding the plaintiff's claim.
4. He may seek to establish a counter-claim, either wholly or partially extinguishing the plaintiff's demand : which subjects will accordingly be treated of in the above order.
The following general considerations, however, demand notice in the first instance. In Didier v. Warner, 1 C. R. 42, it was laid down that a mere memorandum endorsed on the complaint, might possibly, in some cases, be held to be a sufficient
It is obvious, however, that the case is one "sui generis," and not a precedent to be followed under any circumstances.
Objections on the ground of irregular service of process, can neither be taken by answer nor demurrer ; the only course open in such cases, is a motion to set aside such service for irregularity. See Nones v. Hope Mutual Insurance Company, 5 How. 96, 3 C. R. 161, 8 Barb. S. C. R. 511, before cited.
The answer must be directed to meet the plaintiff's case only; and all matter, solely relating to the adjustment of controversies between co-defendants, is immaterial, and will be stricken out on application, if made. Thus, where the answer stated nu facts amounting to a defence as against the plaintiff, but was solely directed to the adjudication of equities as be
tween co-defendants, the whole was stricken out, and judgment ordered for the plaintiff.-- Woodworth v. Bellows, 4 How. 24; 1 C. R. 129.
In an action removed from a justice's court, under the provisions of sections 56 10 61 of the Code inclusive, on the ground of the title to real estate being in question, the answer in the court above must set up the same defence. Considerable discussion has arisen on this subject, and as to whether the defendant is not bound, in these cases, to put in the same answer in form, as well as in substance ; and also, whether it is competent for the plaintiff to reply to such answer. See chapter on the jurisdiction of justices' courts, and the cases of McNamara v. Bitely, 4 How. 44, and Cusson v. Whalon, 5 How. 302, there cited. In Wendell v. Mitchell, however, 5 How. 424, it was held, that answers of this description were amendable, on points of form, and the more recent decisions of Jewett v. Jewett, 6 How. 185, and Kiddle v. De Groot, 1 C. R. (N. S.) 202, 272, establish that both an answer, and a reply, may be put in in these cases, in the usual manner, and without any other restriction than that of setting up the same defence in the former, as that in the justices' court.
In cases where judgment has been taken against several joint defendants, on service of process against one only, under the provisions of chapter II. of title XII. of the Code, before and hereinafter referred to; and where the plaintiff subsequently takes out a summons against ihe defendants not served, to show cause why they should not be bound by such judgment, under the enabling provisions of the chapter in question: the defendant so summoned, may put in an answer in the usual form, and the matter, if defended, becomes in fact a regular action in all its parts, from the service of such summons, with this single exception, that the statute of limitations cannot be pleaded.V. sec. 379.
In the analogous proceeding, given by sec. 376 of the same chapter, as against the heirs, devisees, or legatees of a judg. ment debtor, dying after judgment, or as against his personal representatives, or the tenants of real property owned by him and affected by such judgment, the power of defence is much more limited. Parties standing in this situation, are precluded from making any of the ordinary defences; the only lines open to them being either denial of the judgment itself, or subsequently arisen matter, in bar of the plaintiff's right to relief under it. If neither of these points can be raised, it will be useless to contest the claim, or to put in any answer at all.
Answer, and demurrer proper, are two separate pleadings, and, though they may be made out on one paper, and in connected form, they do not lose their distinctive character. Where, therefore, the defendant had thus framed his defence, and had afterwards amended his pleading, by striking out a general demurrer subjoined to his answer, leaving the latter unimpaired, as far as regarded the issue of fact tendered by it, it was held that this was nothing more than service of a second copy of the original answer, and that a second reply was not requisite.-Howard v. The Michigan Southern Rail Road Company, 5 How. 206.
The subject of demurrer to part of a pleading, and answer to the residue, has already been treated of, and the cases cited in the last chapter.
Returning then to the consideration of the different subjects above laid down:
The law on the subject of demurrer by answer is, in substance, the same as that contained in the last chapter. It would seem, from Clark v. Van Deusen, 3 C. R. 219, that, in order to sustain this line of defence, the complaint, or portion of the complaint so objected to, must be admitted, and not traversed, so as to create an issue of fact, on the same point on which the demurrer is taken.* This would, indeed, be to put in both demurrer and answer to the same cause of action, which, as shown in the last chapter, is not admissible. The only difference between demurrer proper and demurrer by answer, is in the form of the latter, by which, the facts necessary to show the existence of the objection so taken must be averred in the usual mode, the grounds of demurrer arising on those facts, being subjoined, in the usual forms of expression.
This principle is thus laid down in Hornfager v. Hornfager, 6 How. 279; 1 C. R. (N. S.) 412: “ When it appears by the complaint, that there is another action pending between the same parties for the same cause, the remedy is by demurrer. When any of the matters, enumerated in section 141, do not appear upon the face of the complaint, the objection may be taken by answer.” A motion having been made in that case, to set aside
* See, also, Hall v. Bartlett, 9 Barb. S. C. R. 297, cited at the end of the last chapter.