(No. 15.) Non-joinder of a party plaintiff.1 Title of the Cause. The defendants, in answer to the plaintiff's complaint in this action, say: That at the time of the alleged sale and delivery of the goods mentioned in said complaint, one James C. Jones was a partner in the said firm of Briggs & Howard, of which said plaintiffs were members, and that the said Jones is still living at the city of New-York, and said alleged sale and delivery, if made at all, was made jointly by said plaintiffs and said Jones to defendant, and not by said Jones alone.1 (No. 16.) That the plaintiff is a married woman.2 Title of the Cause. The defendant, in answer to the plaintiffs' complaint in this action, says: 1 A mere dormant partner must now be joined as a party plaintiff; and the rule in that respect has been changed by the Code. (Secor v. Keller, 4 Duer, 416; and see No. 9, Part III., ante, p. 368.) 2 This answer is not available in cases where a married woman sues in respect to her separate property. In all such cases she may now sue alone, and without any next friend or guardian. (See 114 Code, as amended by act of 1857, vol. 2., p. 552.) That the said plaintiff, at the time of the commencement of this suit, was and still is married to one J. F., then and still her husband, and who is living at the town of Bern, in Albany county. (3.) MISCELLANEOUS DEFENSIve Answers. (No. 17.) General denial by one defendant, with statute of limitations payment, and demand extinguished by judgment obtained in another state.1 SUPERIOR COURT-CITY OF NEW-YORK. Henry Suydam, Jr., Almet Reed and Daniel R. Suydam George W. Girty, impleaded with William B. Barber and others. The defendant, George W. Girty, one of the defendants in the above action, impleaded, &c., for separate answer to the plaintiffs' complaint: First. Denies each and every allegation in said complaint. Second. And the said defendant, for a second and further defence, alleges, that no action has accrued to the said plaintiffs, by reason of the matters mentioned and set forth in the said complaint, at any time within six years next previous to the commencement of this action.2 1 To Complaint No. 6, Part III., ante, p. 362. 2 The statute of limitations in an action on contract may also be pleaded in this form : "That the plaintiff ought not to have or maintain this action against him, because he says that he did not, at any time within six years Third. And the said defendant, for a third and further defence to the said complaint, alleges, that the debt to recover which this action is brought was, on or about the 5th day of June, 1852, fully paid and satisfied.1 Fourth. And the said defendant, for a fourth and further defence to said action, alleges, that heretofore and after the payment by the said plaintiffs of the bills of exchange mentioned in the said complaint, to wit, in the September term of the court hereinafter named, and on or about the 19th day of February, in the year 1848, the said plaintiff caused a suit to be commenced in the St. Louis Court of Common Pleas, within and for the county of St. Louis, in the State of Missouri, against the defendant, William B. Barber alone, for the purpose of recovering the debt alleged by said plaintiffs to be due to them by reason of the aforesaid payment of the aforesaid bill of exchange, and certain other debts alleged by said plaintiffs to be due to them from said Barber; that the said court having jurisdiction of the subject matter of said suit, and having acquired jurisdiction over the said Barber by the due service upon him of its process, such proceedings were there next before the commencement of this action, undertake, promise or agree to pay to the said plaintiff the said sum of money for which he prays judgment in his said complaint, or any part thereof." 1 It seems now to be well settled that a defence of payment cannot be proved under a general denial, but must be pleaded like the defence of usury, and award made, &c., &c. (Field v. Mayor of New-York, 2 Selden, 189; Brazil v. Isham, 2 Kern., 9; New-York Central Insurance Company v. Nat. Pro. Insurance Company, 20 Barb., 468; and cases cited in Pleadings, 454-477.) And, indeed, it is held that a general denial merely puts the plaintiff upon proof of his case, and that the defendant cannot introduce evidence of any defence not pleaded, whether the defence be payment, fraud, duress or anything else going to show the cause of action discharged or originally void. (See Texier v. Gouin, 5 Duer, 389.) upon in the said suit had, that afterwards, and on the 31st day of October, in the year last aforesaid, the said plaintiffs, by the consideration and judgment of said court, recovered against the said Barber the sum of $6,415.10, in which was included the debt due from Barber, Girty and Doran, the defendants herein, to the said plaintiffs, on account of the payment by said plaintiffs of the bill of exchange mentioned in the complaint herein. And the said defendant further alleges that the cause of action, specified in the complaint herein, is the same identical cause of action with a portion of those on account of and by reason of which the said plaintiffs recovered the sum last aforesaid in the court last aforesaid; and that the plaintiffs in this action are the same as the plaintiffs in the said suit in the said court of Missouri, and that William B. Barber, the defendant herein, is the same person with the said Barber, the defendant in the said suit in said State of Missouri.1 1 A defendant may set out as many defences as he may have; each defence, however, should be complete in itself, without reference to others, and be an answer to the cause of action to which it is addressed. (Spencer v. Babcock, 22 Barb., 335; Bridge v. Payson, 5 Sand., 200; Brown v. Ryckman, 12 How., 314.) It is said, however, that he cannot plead inconsistent defences, that is, he cannot plead two defences, one of which must necessarily be false. Within this rule he is allowed to deny the speaking of words, and at the same time justify in an action of slander, for both answers may be true, and therefore, the defences are not inconsistent. (Hollenbeck v. Clow, 9 How, 290; and see on this subject, Pleadings, 518-524.) It has been held that a general denial and a defence of tender before suit brought are inconsistent defences and cannot be pleaded together. (Livingston v. Harrison, 2 E. D. Smith's R., 197.) But within the rule in Hollenbeck v. Clow (supra), such defences, it seems, are not necessarily inconsistent, for both may be true. In such case, however, the defendant must pay the money into court, or he loses the benefit of his defence (ibid.); and it has been recently held that it must be so pleaded, (No. 18.) In an action for damages for breach of contract to sell railroad stock, defence that sale was a stock-jobbing transaction, and void.1 The defendant, in answer to the complaint of the said plaintiff, says: That the said contract for the sale of said shares by the defendant to the plaintiff was, as the plaintiff well knew, a stock-jobbing transaction, made by and between the plaintiff and defendant contrary to the form of the statute in such case made and provided, and that, at the time of the making of said contract, he, the said defendant, was not in the actual possession of the certificates or other evidence of such shares of the capital stock of the New-York and Erie Railroad Company, so contracted for, nor was he otherwise entitled, in his own right, nor was he duly authorized by any person so entitled, to sell or transfer the said certificates or other evidence of the said shares of said capital stock so contracted for, by reason whereof said otherwise the actual payment of money into court is unavailing to protect the defendant against a judgment for the amount and costs. (Van Valkenburgh's Executors v. Van Schaack, General Term, fourth district, September, 1857, not reported.) The tender, therefore, is in point of fact an admission of the cause of action to that amount, and the plaintiff is entitled to the sum paid into court, whether he actually had a cause of action against the defendant or not. 1 To Complaint No. 49, Part III., ante, p. 444. |