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It did not necessarily follow either, that, under the late measure, a clearly frivolous answer could be stricken out as false. It must have been shown to be put in in bad faith, and to be so impertinent or grossly frivolous, that the court could not but see that the object was to delay or perplex the plaintiff, instead of presenting a defence.

Unless this could be clearly established, the only proper course, under that measure, was to move for judgment upon such answer, as frivolous, under sec. 247. Darrow v. Miller, 5 How. 247; 3 C. R. 241. See also Brown v. Jenison, below cited. Similar views are likewise held in Rae v. The Washington Mutual Insurance Company, 6 How. 21, a decision under the section last referred to.

In Mier v. Cartledge, 4 How. 115, the court, at special term, somewhat departed from the principle of not testing the truth of an answer on special motion, (though fully acknowledging that principle in the main, and citing the case of Broome County Bank v. Lewis, 18 Wendell. 565, in support of it.) It appeared to the judge, in that case, that, from the wording of the answer itself, a real issue was not intended. On that ground, affidavits were allowed to be read, and it was held that the defence in the answer was a sham defence, and a motion to strike it out as such was accordingly granted, with costs, though without prejudice to the defendant's thereafter applying to the court, for leave to put in a defence in good faith.

The defendant's appeal led from that decision to the general term, reported in 8 Barb. S. C. R. 75, 2 C. R. 125, and the judgment in question was reversed, on the ground that the answer having been verified under the Code, and there having been some ground to believe that it had been put in in good faith, ought not to be stricken out on motion. In Tracy v. Humphrey, 5 How. 155, 3 C. R. 190, the authority of the last decision was confirmed, and it was distinctly held that a verified answer could not be stricken out, as false, on affidavits. The same conclusion is likewise come to in Catlin v. McGroarty, 1 C. R. (N. S.) 291.

The above decisions amounted almost to a practical prohibiNow, tion of motions under this section, as unamended. however, the case is different, and relief on the ground of irrelevant, as well as sham defences, being obtainable under

this provision for the future, applications under it may be expected to become more frequent.

The courts, however, are still somewhat indisposed to grant relief of this description, except in extreme cases. Thus, an answer, imperfect in point of form, but the facts contained in which might have formed a valid defence, if properly stated, was refused to be stricken out.-Alfred v. Watkins, 1 C. R. (N. S.) 343, before cited. Thus also, an answer similarly void under the Code of 1851, as containing a general, instead of a specific denial of the plaintiff's case, was likewise refused to be stricken out in Seward v. Miller, 6 How. 312; and an answer, merely containing a denial of notice to the endorser, in an action on a promissory note, was similarly treated in Garry v. Fowler, 10 L. O. 16: it being further held, in that case, that even when manifestly put in for delay, the answer must be false in fact, and known to be so to the defendant, in order to justify its being treated as "sham."

Where, however, a manifestly evasive answer is put in, denying knowledge or information sufficient to form a belief, of facts within the defendant's knowledge, or means of knowledge, such answer will be bad.-Mott v. Burnett, 1 C. R. (N. S.) 225; Hance v. Reming, 1 C. R. (N. S.) 204, both before cited; and, in the latter case, an answer of this description was expressly stricken out as sham, under the power above cited.

The same result was arrived at, on similar grounds, in Nichols v. Jones, 6 How. 355; and a strong disposition was shown to extend the measure of relief, in cases of a palpably false answer, according to the principles laid down in the decision at special term, in Miller v. Cartledge. The reversal of that decision by the general term, seems, however, to have escaped notice on the argument; and a note to that effect, and submitting to the authority of that reversal, is appended at the conclusion of the report.--6 How. 360. The following general principles, in relation to defects in pleading, are laid down in the course of the opinion pronounced. Upon the whole, I think, the various provisions of the Code on this subject are consistent, and cover the whole ground precisely, neither more nor less. If an answer, otherwise good, is loaded with unnecessary and redundant matters, the plaintiff's counsel should move, under section 160, to have such matters expunged. If doubts

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are entertained as to the sufficiency in law of the answer, and the opinion of the court is desired, it must be obtained by demurrer. If, however, any defence is palpably insufficient, a motion for judgment, on the ground of frivolousness, is the proper course; and, if the matters of defence can be shown to be clearly false, a motion to strike out as sham, will reach the evil. These four modes cover all defects in an answer."

The power given to the court to impose proper terms, on granting relief under the section now in question, is also an important amelioration; though it is more than doubtful whether the same power did not exist before, to its full extent. In relation to insufficient defences, see the general principles laid down in various cases, and particularly in Fry v. Bennett, above cited.

The consequences of a frivolous defence are of an analogous nature; viz. that the party making it, is liable to a motion for judgment thereon being made by the plaintiff, under the powers given in section 247. The question as to what are or are not frivolous defences, has been before entered upon, in this and the preceding chapters; and the considerations in relation to the form of such application, will be hereafter treated of under their proper head.

It follows, of course, that both immateriality and frivolity in defence, are defects against which the pleader must carefully guard. It seems scarcely possible to imagine a case, proper for defence at all, in which these objections cannot be fully obviated, by a careful attention to the phraseology employed, and by recourse to the most extensive powers of traversing the plaintiff's case on information and belief only, before alluded to in the earlier portion of the present chapter.

The following definition of sham and frivolous answers respectively, is given by the superior court in the case of Brown v. Jenison, 3 Sandf. S. C. R. 732, 1 C. R. (N. S.) 156, and will be of use in pointing out the objectionable particulars to be guarded against, as above. "A sham answer and defence, is one that is false in fact, and not pleaded in good faith. It may be perfectly good in form, and, to all appearance, a perfect defence. Section 152 provides for striking out such answers. A frivolous answer is one that shows no defence, conceding all that it alleges to be true. Each may be stricken out on motion, but it is under different provisions of the Code."

CHAPTER V.

COURSE OF THE PLAINTIFF ON RECEIPT OF THE DEFENDANT'S PLEADING.

THE first thing to be looked to, by the plaintiff, on receipt of the adverse pleading, is to see whether it be regular in point of form, and, in the case of answer, duly and properly verified. See previous chapter as to formal requisites of pleading. The pleading, if defective, must be returned forthwith, as there pointed out; and any objections, on that or any other formal grounds, must be taken at once, or else the right to do so may be considered as waived. The next point for consideration, where answer is put in, is as to whether that answer does or does not contain an admission that part of the plaintiff's claim is just, or that the defendant has property in his hands belonging to another party, on which admission an application may be grounded, that he may be ordered to satisfy such admitted portion, or to hand over or deposit such property admitted to be in his hands, as provided by the recent amendment in sec. 244.

The answer should next be carefully examined, with a view to ascertain whether it contain any allegations liable to be stricken out for redundancy, or irrelevancy, or which the plaintiff may require to be made more definite or certain by amendment, under the provisions of sec. 160.

This subject has also been fully entered upon in the introductory chapter of this portion of the work. The proceeding for that purpose must, as there mentioned, be taken speedily, and before the time originally allowed for replying expires, or the right to take it will be gone.

The above proceeding refers more peculiarly to the insertion of irrelevant matters in a relevant defence, and to the purgation of the record in this respect; but it is also possible that the whole of the answer, or the whole of any ground of defence taken therein, may be sham or irrelevant. In this case the remedy of the plaintiff is different. A motion under section 160 will not meet the case, but the application must be made under

section 152, as commented upon at the close of the last chapter. It is probable, as there remarked, that this line of proceeding may become more frequent henceforth, than it has hitherto been, under the unamended section, particularly with reference to irrelevant defences, portions of an answer partly relevant. If the whole answer be stricken out as irrelevant, the plaintiff's course appears to be to sign judgment thereupon, under sec. 246, as for want of an answer; on affidavit, that no answer has been received except the one stricken out: nor can the defendant put in any further defence under such circumstances, unless on leave of the court specially obtained, inasmuch as, the answer being stricken out, his right to amend as of course is gone.— Aymar v. Chase, 1 C. R. (N. S.) 141.

If, though not sham or irrelevant, the demurrer or answer be frivolous, the course then to be pursued will be to move for judgment, under the provisions for that purpose contained in sec. 247, and which run as follows:

§ 247. If a demurrer, answer, or reply be frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of the court, for judgment thereon, and judgment may be given accordingly.

The form and mode of entry of judgment so obtained, will be hereafter considered, and the cases in relation thereto cited, under the head of judgment by default. A motion under that section is absolutely necessary, for obtaining relief under the above state of circumstances, for, however frivolous the pleading may be, it cannot be disregarded as a nullity.-Corning v. Haight, 1 C. R. 72; Hartness v. Bennett, 3 How. 289, 1 C. R. 68; Swift v. De Witt, 3 How. 280; 6 L. O. 314; 1 C. R. 25; Noble v. Trowbridge, 1 C. R. 38; Stokes v. Hagar, 7 L. O. 16; 1 C. R. 84. Nor can the plaintiff so treat a demurrer, put in jointly with an answer to the same cause of action, though either the demurrer or the answer, if so put in, is clearly bad. His only course, under those circumstances, will be to move to strike out either the demurrer or the answer, or that the defendant may be compelled to elect by which defence he will abide.-Spellman v. Weider, 5 How. 5; Slocum v. Wheeler, 4 How. 373.

In Stokes v. Hagar, above cited, it was held that a motion, under the above section, might be made after reply served, but this doctrine seems to be more than doubtful, and cannot be re

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