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by the above provisions, the courts have throughout shown a very strong disposition to relax the strictness of this rule in practice, though, of course, only upon the existence of a bond fide defence being shown, and on conditions imposed. The following general principle runs, too, through all the cases upon the subject, i. e., that where a defendant, already in default, applies for leave to be allowed to come in and defend, his proposed answer should be drawn and sworn to, and a copy thereof served with the notice of motion or order to show cause, by which such relief is asked: in order that the court may judge as to whether the case is a proper one in which to grant relief of that nature, and as to the proper terms to be imposed, as conditions on granting it. See this last principle, as held under the old practice, in McGafigan v. Jenkins, 1 Barb. S. C. R. 31.

The earliest case on the above subject, as applicable to proceedings under the Code, is Lynde v. Verity, 3 How. 350, I C. R. 97, where the whole of the different principles, as above stated, are distinctly laid down. In Salutat v. Downes, 1 C. R. 120, the same indulgence was granted, after a discussion as to whether the court had, or had not, power to enlarge the time at all. By Allen v. Ackley, however, 4 How. 5, the doctrine was carried to the fullest extent, two defendants having, in that case, been let in to defend, after judgment had been taken against them by default ; one of them only making what the court pronounced to be a lame excuse for not answering, and the other making no excuse at all. The court, however, imposed strict terms and conditions ; in particular, that the statute of limitations should not be pleaded, and also that the judgment should stand as a security to the plaintiff.

In Grant v. McCaughin, 4 How, 216, the defendant was al{owed to come in and defend, after judgment had been entered against him, in consequence of a misapprehension as to the effect of a stipulation given, extending his time to answer; and, under these circumstances, the court, though enforcing the payment of costs, and directing the judgment to stand as security, refused to impose any condition as to the nature of the defence sought to be set up, which in that case was usury.

Where, however, an unconscientious or dishonest defence is sought to be set up, after default, the court will not open that default, or relieve the party from the consequences of his own neglect.-See James G. King v. The Merchants' Exchange Company, and others, 2 Sandf. S. C. R. 693.

In Foster v. Udell, 2 C. R. 30, the New York common pleas decided that a delay on the part of the plaintiff in taking judgment, was equivalent to a consent to give the defendant further time to answer, and they set aside, as irregular, a judgment so obtained, the defendant, long after his time had expired, but before judgment was entered, having served an answer, but which the plaintiff's attorney had refused to receive. The doctrine of this case has, however, been since overruled. A decision exactly contrary to it was given by the supreme court, in the case of Dudley v. Hubbard, 2 C. R. 70; and a motion to set aside a judgment thus entered, was denied, with costs. In McGown v. Leavenworth, 3 C. R. 151, the same principle is laid down ; and this, being a decision of the general term of the same court by which Foster v. Udell was decided, directly overrules it. It was also held, in the same case, that an order staying the plaintiff's proceedings, does not, per se, enlarge the defendant's time to answer. It can only be so by order specially obtained for that purpose. The stay of proceedings only precludes the plaintiff from taking advantage of the omission, until that stay is vacated, or at an end. The defendant had there, on the last day, obtained an order to show cause why he should not have further time to plead, with an interim stay of proceedings as usual, which order was discharged on the return. Pending that stay, but after the time actually allowed had expired, the defendant had served his answer, which service was held to be irregular, and was set aside.

In Mandeville v. Winne, 5 How.461, 1 C. R. (N. S.) 161, the doctrine of the above cases, and particularly as laid down in Dudley v. Hubbard, was distinctly confirmed; and the same seems to be implied in Graham v. McCoun, 5 How. 353; 1C. R. (N. S.) 43. It may, therefore, be looked upon as settled, that, if the defendant allow his time to plead to go by without obtaining an extension, he cannot afterwards serve his pleading, in ordinary form, or without leave of the court, specially obtained on notice to the plaintiff; and this, although the latter may not at the time have taken any steps to avail himself of the default suffered.

See, likewise, O'Brien v. Catlin, 1 C. R. (N. S.) 273. Of course, however, if the plaintiff's solicitor expressly receive, or do not return the pleading thus irregularly served, within

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a reasonable time, the defect will then be waived, and the answer may be sufficient. See introductory chapter on formal requisites of pleading, and various cases, including Laimbeer v. Allen, 2 Sandf. S.C. R. 648, there cited. The same, too, is implied in McGown v. Leavenworth, above mentioned ; and a return within the same day in which the pleading was served, was held to be a reasonable time.

The plaintiff, too, cannot take advantage of a default occasioned by the laches or bad faith of his own attorney, where the defendant's pleading has been ready, and attempted to be served, within due time. Thus, in Falconer v. Ucoppel, 2 C. R. 71, on the last day of service, the defendant endeavored, in office hours, to serve his answer at the plaintiff's office, and also at his dwelling, but both were closed, and no one was there to receive it; but, on the following day, such defendant succeeded in serving the answer on the plaintiff personally, with notice of the attempted service on the day before : under which circumstances it was held that the service was regular, and costs were given.

Lastly, in relation to the time allowed to plead, the effect of an amendment by the adverse party must not be forgotten.The consequence of such an amendment is, to establish a new period altogether, in lieu of that current before the service of the amended pleading. The time will then run in the usual manner, as from the date of such service, without any reference whatever to the proceedings prior thereto. See this subject previously considered, and the cases thereon cited, in the introductory chapter of this part of the work, in reference to the correction of pleadings.

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CHAPTER III.

DEMURRER.

The office of this species of pleading, is the formal impeachment of defects in the plaintiff's case, apparent upon his own showing. It is, therefore, a measure of comparative infrequency, as, in a well-drawn pleading, it rarely happens that any such salient points of attack are left uncovered. If the defects objected to require any statement or proof of facts to make them apparent, demurrer will not lie. The objection in that case can only be taken by answer, and the defendant's rights, in that respect, are specially saved by section 147. In practice, therefore, this will be the most usual course.

In Humphreys v. Chamberlain, 1 C. R. (N. S.) 387, it was accordingly held that a demurrer to an action on a contract, on the ground that such contract was void by the laws of the State in which it was made, was bad, and that the objection could only be taken by answer; inasmuch as the contents of foreign statutes are a matter of evidence, which must be set up in the pleadings as a fact, and proved at the trial accordingly.

The demurrer and answer are essentially separate pleadings, and do not lose their distinctive character by being made out in one paper, and connected in form. See Howard v. The Michigan Southern Railroad Company, 5 How. 206, below cited.

Where the complaint in an action showed a title to sue, but contained insufficient averments on the subject of that title, answer, not demurrer, was held to be the proper form of raising the question.—Millard v. Shaw, 4 How. 137.

The points on which demurrer will lie, and the nature of. that pleading in general, are strictly defined by sections 144 and 145 of the Code, which run as follows:

$ 144. The defendant may demur to the complaint, when it shall appear upon the face thereof, either

1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or,

2. That the plaintiff has not legal capacity to sue; or,

3. That there is another action pending between the same parties, for the same cause ; or,

4. That there is a defect of parties, plaintiff or defendant; or,

5. That several causes of action have been improperly united; or,

6. That the complaint does not state facts sufficient to constitute a cause of action.

$ 145. The demarrer shall distinctly specify the grounds of objection to the complaint. Unless it do so, it may be disregarded. It may be taken to the whole complaint, or to any of the alleged causes of action stated therein.

It follows, as a matter of course, that no description of objection which does not fall within one or other of the foregoing classes, will now form ground of demurrer.

Demurrer is admissible with respect to other pleadings besides the complaint, as hereafter noticed.

Demurrer will only lie to an entire pleading, or to an entire

Page 246, line 12. It is now provided by Rule 87, inserted on the last revision, that, in all cases of more than one distinct cause of defence, the same shall not only be separately stated, but plainly numbered. This provision should be attended to in the statement of grounds of demurrer. sufficient statements, however, demurrer is the proper course : see Hocie v. Cushman, 7 L. O. 149; and a motion of the above nature will be inadmissible.

That demurrer is not an admissible form of objecting to irrelevant or redundant matter, is likewise laid down in the recent cases of Gray v. Nellis, 6 How. 290; and The Bank of North America v. Suydam, 1 C. R. (N. S.) 325; Benedict y. Dake, 6 How. 352; and Nichols v. Jones, 6 How. 355.

Where a portion of a pleading was sufficient, a demurrer to the whole was held too broad, and overruled in Cooper v. Clason, 1 C. R. (N. S.) 347.

On similar principles, matter in mitigation, alleged in an answer in slander, was held not to be a subject of demurrer. Newman v. Otto, 10 L. 0. 14.

Where the pleading objected to was correct in substance, but not in form, it was held that a motion, in order to the cor

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