Page images
PDF
EPUB

a

lows: “In an action on a promissory note, an answer averring payment is not pleading new matter, which it is necessary to controvert, for it is merely taking issue on a material averment of the breach of the contract."

“An issue is joined when there is a direct affirmation and denial of the fact in dispute, and it makes no difference whether the affirmative or the negative is first averred."

“In an action on a promissory note, the plaintiff must prove, 1st. The identity of the note; 2d. His interest in it; 3d. That defendant is a party to it; and 4th. That defendant has not performed his contract. The possession of the note by the plaintiff is primâ facie evidence that it is not paid, and an averment of payment is not, therefore, new matter, but merely in denial of a material allegation in the complaint.”

It has also been held that an answer merely denying the plaintiff's case, and containing no new matter, need not be replied to. The defendant, in this case, cannot move for judgment under sec. 154 ; his remedy is to notice the cause for trial.Brown v. Spear, 5 How. 146; 3 C. R. 192; 9 L. O. 97.

Where the defendant served an answer and a demurrer annexed to it, and subsequently, after reply, served what was called an amended answer, but which was in fact another copy of the former answer, without the demurrer, it was held that the plaintiff was not bound to serve a second reply, and the defendant's motion for judgment was denied with costs.-Howard v. The Michigan Southern Railroad Company, 5 How. 206; 3 C. R. 213.

In Beals v. Cameron, 3 How. 414, where the defendant pleaded that another suit was pending for the same cause of action, and the plaintiff replied that that suit was discontinued, such reply was held to be good, it being true at the time when it was

put in.

The plaintiff, as respects reply, has the same power to traverse new matter, by denial of knowledge, &c., sufficient to form a belief, as the defendant has with regard to answer. Such a reply controverts specifically, and is sufficient to raise an issue.

- Doremus v. Lewis, 8 Barb. S. C. R. 124. See, Mkewise, the recent case of Gilchrist v. Stevenson, 9 Barb. S. C. R. 9.

The questions which have arisen as to real estate cases removed from a justices' court, have been already noticed, and the conflicting cases on the subject cited, under the heads of Answer, and of the jurisdiction of those tribunals.

It seems now settled, that the pleadings in these cases must follow the ordinary form, and that a reply, where requisite, is admissible, which at first was doubted.

An answer, merely denying joint ownership on the part of plaintiff's who sued as partners, was held in Walrod v. Bennett, 6 Barb. SC, R. 144, to be material, and necessary to be replied to. Under the recent amendment, no reply would be necessary, a sufficient issue being already raised.

In Barton v. Sackett, 3 How. 358, 1 C. R. 96, it was, under the original Code, held unnecessary to reply to allegations as to the legal construction and effect of written instruments, or as to the intent and meaning of parties in executing a written contract. The adverse party's right to treat uncontradicted averments as admitted, was there held to be confined to aver: ments of fact, and not to extend to allegations of the nature above referred to, though of course an averment of mistake or surprise in executing such agreement, would have been different.

In Merritt v. Slocum, 1 C. R. 68, the plaintiff was allowed to reply upon terms, after the cause had been actually heard before a referee, on an allegation that his attorney had omitted to

a do so through mistake.

No particular form is necessary with respect to the reply to be put in. The allegations in it, as directed to the new matter necessary to be traversed or met by counter allegations, are, " mutatis mutandis,” precisely similar to those in answer, and are subject to all the same incidents, as to form of averment or otherwise. Of course, the utmost attention will be paid to leave

Page 293, line 29. Rule 87, inserted on the recent revision, which provides, that in all cases of more than one distinct cause of reply, the same shall not only be separately stated, but plainly numbered, must be carefully observed for the future.

On service of the reply, the uercijuanı inuu vuow to him for testing the sufficiency of that pleading.

The first of these courses is the power to move to strike out irrelevant or redundant matter, which has been before treated lows: "In an action on a promissory note, an answer averring • payment is not pleading new matter, which it is necessary to

controvert, for it is merely taking issue on a material averment of the breach of the contract."

“An issue is joined when there is a direct affirmation and denial of the fact in dispute, and it makes no difference whether the affirmative or the negative is first averred."

“In an action on a promissory note, the plaintiff must prove, 1st. The identity of the note; 2d. His interest in it; 3d. That defendant is a party to it; and 4th. That defendant has not performed his contract. The possession of the note by the plaintiff is primâ facie evidence that it is not paid, and an averment of payment is not, therefore, new matter, but merely in denial of a material allegation in the complaint.”

It has also been held that an answer merely denying the plaintiff's case, and containing no new matter, need not be replied to. The defendant, in this case, cannot move for judgment under sec. 154 ; his remedy is to notice the cause for trial.Brown v. Spear, 5 How. 146; 3 C. R. 192; 9 L. O. 97.

Where the defendant served an answer and a demurrer annexed to it, and subsequently, after reply, served what was called an amended answer, but which was in fact another copy of the former answer, without the demurrer, it was held that the plaintiff was not bound to serve a second reply, and the defendant's motion for judgment was denied with costs.Howard v. The Michigan Southern Railroad Company, 5 How. 206; 3 C. R. 213.

In Beals v. Cameron, 3 How. 414, where the defendant pleaded that another suit was pending for the same cause of action, and tha nlaintiff renlied that that suit was discontinued, such reply

recent case of Gilchrist v. Stevenson, 9 Barb. S. C. R. 9.

The questions which have arisen as to real estate cases removed from a justices' court, have been already noticed, and the conflicting cases on the subject cited, under the heads of

[ocr errors]

Answer, and of the jurisdiction of those tribunals.

It seems now settled, that the pleadings in these cases must follow the ordinary form, and that a reply, where requisite, is admissible, which at first was doubted.

An answer, merely denying joint ownership on the part of plaintiff's who sued as partners, was held in Walrod v. Bennett, 6 Barb. SC, R. 144, to be material, and necessary to be replied to. Under the recent amendment, no reply would be necessary, a sufficient issue being already raised.

In Barton v. Sackett, 3 How. 358, 1 C. R. 96, it was, under the original Code, held unnecessary to reply to allegations as to the legal construction and effect of written instruments, or as to the intent and meaning of parties in executing a written contract. The adverse party's right to treat uncontradicted averments as admitted, was there held to be confined to averments of fact, and not to extend to allegations of the nature above referred to, though of course an averment of mistake or surprise in executing such agreement, would have been different.

In Merritt v. Slocum, 1 C. R. 68, the plaintiff was allowed to reply upon terms, after the cause had been actually heard before a referee, on an allegation that his attorney had omitted to do so through mistake.

No particular form is necessary with respect to the reply to be put in. The allegations in it, as directed to the new matter necessary to be traversed or met by counter allegations, are, " mutatis mutandis,” precisely similar to those in answer, and are subject to all the same incidents, as to form of averment or otherwise. Of course, the utmost attention will be paid, to leave no material averment in relation to a counter-claim uncontradicted, especially as it seems very doubtful whether a reply can be amended at all, without special leave of the court. The provisions under sec. 172, do not seem to reach the case, inasmuch as, no answer being required or admissible, there can be no “period for answering," within which, as there prescribed, an amendment may be made as of course.

On service of the reply, the defendant has two courses open to him for testing the sufficiency of that pleading.

The first of these courses is the power to move to strike out irrelevant or redundant matter, which has been before treated

of, and the cases cited, in the introductory chapter, and in those as to coniplaint and answer.

The second of these courses is a demurrer to such reply as insufficient, as especially provided for by section 155.

It will be seen that this power is precisely analogous to the plaintiff's right to demur to the answer, as commented upon in the earlier portion of this chapter, and that the observations there made, or referred to, are equally applicable.

It would seem that, in certain cases, a reply may be unadvisable, without previous proceedings in the nature of a reference, or otherwise. V. Groshons v. Lyons, 1 C. R. U. S. 348. If such a case should occur in practice, of course an order extending the time to reply until after the result of the proceed. ing should be applied for, a notice to the adverse party may probably be necessary.

The following cases have especial reference to the subject of demurrer, as above :

A reply not involving a traversable fact, but merely stat. ing a conclusion of law, will be held bad upon demurrer. Bentley v. Jones, 4 How. 202, in which case the plaintiff merely denied “that the defendant had any interest in the premises,” without showing how he became divested of an interest, alleged by his answer to be vested in him.

In Rae v. The Washington Mutual Insurance Company, 6 How. 21, a demurrer to reply for insufficiency, stating various grounds of objection, and pleading that the reply was insufficient on the ground of those defects, was refused to be stricken out as frivolous, though no opinion was given as to the ultimate result of such demurrer.

The motion there made, i. e., that the demarrer should be stricken out, was held not to be for judgment on the demurrer under section 247, and that, therefore, such motion could not be granted under that section, or on the short notice of five days thereby prescribed. See Darrow v. Miller, 5 How. 247, 3 C.R. 241, before cited. In Slocum v. Hooker, 10 L. 0. 19, an action brought against two adult joint contractors, and defended on the ground of a third not having been joined, a reply that such third joint contractor was an infant, was held to be good, and that the action was well brought; and, the defendant having demurred, judginent was given for the plaintiff upon the demur.

rer.

« PreviousContinue »