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Coddington, 2 E. D. Smith, 317; Anonymous, 11 L. O., 350; Dewey vs. Hoag, and Gage vs. Angell, above cited; Dobson vs. Pearce, 2 Kern., 156; 1 Abb., 97; affirming same case, 1 Duer, 142; 10 L. O., 170; Bridge vs. Payson, 5 Sandf., 210, and numerous other cases. It is, in fact, inherent in the very power to set up a defence, virtually amounting to a cross-action, as conferred by the section. Cochran vs. Webb, 4 Sandf., 653, was decided prior to its amendment.

Indefiniteness of statement, will not be reason for rejecting this defence, where the essentials of it are apparent on the face of the pleading. The plaintiff's remedy, in such case, will be by motion for uncertainty. Currie vs. Cowles, 6 Bosw., 452.

CHAPTER IV.

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

§ 181. Proceedings in Impeachment of Adverse Pleading.

(a.) GENERAL EXAMINATION.-FORMAL DEFECTS.

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 duly verified, when verification is requisite. See above, chapter II. of book VI., as to the formal requisites of pleading. If defective, such pleading should be returned forthwith, as there pointed out; and any objection on these or any other merely technical grounds must be taken at once, or it will be treated as waived. See, as to mode of return, Jacobs vs. Marshall, 6 Duer, 689.

A joint answer, of parties severally as well as jointly interested, unless verified by all, will be no answer, as regards those who omit to verify, and will be stricken out as such. Andrews vs. Storms, 5 Sandf., 609; Alfred vs. Watkins, 1 C. R. (N. S.), 343. The answer of a married woman, in her own person, and not by her next friend, was also taken off the file as no answer, as the Code then stood, in Henderson vs. Easton, 8 How., 201. See also Phillips vs. Burr, 4 Duer, 113.

(b.) SUBSTANTIAL DEFECTS-HOW IMPEACHED.

The different lines of procedure open to the plaintiff for this purpose are well defined by Barculo, J., in Nichols vs. Jones, 6 How., 355, as

follows: "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 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."

Similar views to the above are also laid down in Harlow vs. Hamil ton, 6 How., 475; People vs. McCumber, 27 Barb., 632; 15 How., 186; affirmed, 18 N. Y., 315; Thorn vs. New York Central Mills, 10 How., 19; Struver vs. Ocean Insurance Company, 2 Hilt., 475; 9 Abb., 23; Blake vs. Eldred, 18 How., 240.

The impeachment of an answer by demurrer will form the subject of a section in the next succeeding chapter.

The expurgation from it of unnecessary or redundant matter, by motion under section 160, has already been fully considered, in chapter IV. of book VI.

There remain to be treated of the two following of the remedies above indicated:

Under section 152, "Sham and irrelevant answers and defences may be stricken out, on motion, and upon such terms as the court may in their discretion impose."

Under section 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 court, for judgment thereon, and judgment may be given accordingly."

The portion of section 152 which authorizes the striking out of irrelevant answers or defences, dates from the amendment of 1851. The powers conferred by that section were previously confined to such as were sham, in the strict acceptation of the term. Its operation was accordingly greatly restricted, as is apparent from the decisions prior to the amendment.

The distinction between that section and section 160, must also be carefully noted. Both authorize a striking out, but the cases to which they are applicable are essentially different.

The operation of section 152 extends only to irrelevant matter, constituting an entire defence, separately stated, or separately considered. If any portion of the defence, in which such matter is found, be relevant in any shape, that matter, however grossly objectionable in itself, cannot

e reached in this manner. The remedy is a motion for its expurgation, under section 160, the relevant portion of the allegation being permitted to stand. See Slack vs. Cotton, 2 E. D. Smith, 398. If, on the other hand, the answer itself, or any separate defence set up in it, be irrelevant as a whole, and not merely objectionable as containing an admixture of irrelevant matter, a motion under section 160 will not be proper, and resort should be had to section 152. See Blake vs. Eldred, 18 How., 240. In Hull vs. Smith, 1 Duer, 649; 8 How., 149, and Quin vs. Chambers, 1 Duer, 673; 11 L. O., 155, this distinction is, however, omitted to be observed.

Another essential distinction exists between the two remedies. The motion for partial irrelevancy under section 160 must, under rule 50 (40), be noticed before demurring to, or answering the pleading impeached, and within twenty days from its service. If not so noticed, the defect will be waived. There is no such restriction imposed upon a motion under section 152, on the ground of total irrelevancy, either of the answer in general, or of any specific defence set up. This objection goes, not to the form, but to the merits, and may be taken at any time. See Miln vs. Vose, 4 Sandf., 660; Stokes vs. Hagar, 7 L. O., 16; 1 C. R., 84.

The remedy, under section 152, does not extend to demurrers. It embraces, however, the striking out of irrelevant defences, constituting parts of an answer, leaving other portions of the pleading to stand. Section 247 is wider, so far as it gives a remedy in case of a frivolous demurrer, but narrower in other respects, inasmuch as the objection under it lies only to the pleading, considered as a whole. If any defence set up in that pleading be relevant, so as to raise a competent issue, this form of application is unsustainable, however grossly frivolous the rest of it may be. The plaintiff cannot, in such case, obtain his remedy by anticipation, but must go regularly to trial.

There exist, also, essential distinctions between the classes of pleadings to which the above sections are respectively applicable, the nonobservance of which, in practice, has occasionally led to some confusion.

The distinction is thus drawn, in Brown vs. Jennison, 3 Sandf., 732; 1 C. R. (N. S.), 156: "A sham answer or 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."

This distinction is approved of by the general term of the same

court, and more curtly stated, as follows, in Hull vs. Smith, 1 Duer, 649; 8 How., 149: "A sham answer is good upon its face, but false in fact; a frivolous answer, denies no material averment in the complaint, and sets up no defence." See also in the Supreme Court, Lefferts vs. Snediker, 1 Abb., 41; Thorn vs. New York Central Mills, 10 How., 19; Leach vs. Boynton, 3 Abb., 1; Seward vs. Miller, 6 How., 312.

The same principles, with an additional definition as to what constitutes an irrelevant answer, are restated in Struver vs. Ocean Insurance Company, 2 Hilt., 475; 9 Abb., 23: "A sham answer is one that is false in fact. A pleading is irrelevant, which has no substantial relation to the controversy between the parties to the action; and a frivolous answer is one which, assuming its contents to be true, presents no defence to the action." See also, as to what constitutes an irrelevant defence, Walker vs. Hewitt, 11 How., 395 (398).

(c.) APPLICATIONS UNDER SECTION 152.

Where an answer is irrelevant as a whole, it can scarcely happen but that it is also frivolous, and a motion under section 247 will be the more expedient course. The remedy for irrelevancy only is, therefore, more peculiarly applicable to the striking out of defences, separately stated.

In Woodworth vs. Bellows, however, 4 How., 24; 1 C. R., 129, relief of this nature was granted, and an answer wholly stricken out, which merely sought to lay ground for the adjudication of equities, as between co-defendants, without presenting any defence to the plaintiff's claim. See Lee Bank vs. Kitching, 11 Abb., 435; and Bailey vs. Lane, 21 How., 475; 13 Abb., 354, as to striking out an irrelevant defence.

But an entire answer, to be irrelevant, must not be pertinent to the cause of action, and must not serve to support any defence to it, in whole or in part. To strike it out, the irrelevancy or frivolousness must be palpable and clear, and must not require argument to establish it. If any question is raised, requiring consideration, it should be presented by demurrer. Littlejohn vs. Greeley, 22 How., 345; 13

Abb., 311.

As appears by the definitions above given, an essential element in a sham answer or defence is falsity. It must be false in fact, or it will not be sham. It must also be interposed in bad faith, or the court may refuse to exercise its summary power of striking out. Benedict vs. Tanner, 10 How., 455; Gould vs. Robinson, 1 Abb., 116; Munn vs. Barnum, 12 How., 563; 1 Abb., 281; Farmers' and Mechanics' Bank of Rochester vs. Smith, 15 How., 329; Ostrom vs. Bixby, 9 How., 57 ; Fosdick vs. Groff, 22 How., 158.

The People vs. McCumber, 18 N. Y., 315; affirming same case, 27 Barb., 632; 15 How., 186, may be looked upon as the leading case, in relation to applications under the present section, and establishes several important principles.

It first lays down, pp. 320, 321, the following definition: "A defence is sham, in the legal meaning of the term, which is so clearly false in fact, that it does not in reality involve any matter of substantial litigation. The chief characteristic of such a defence is its undoubted falsity. Such a formal defence is sometimes designated as a false defence. The words sham and false, applied to such a defence, signify the same thing."

The opinion then notices the former practice of not striking out a plea of the general issue, and lays down that this practice is now abolished, and that defences, by way of denial, according to the forms of the Code, "may be false or sham, and abused for improper purposes, as well as a defence of any other character," and are accordingly within the purview of the present section, pp. 322, 323.

It then establishes (p. 324), that the Code makes no distinction between verified and unverified answers in this respect, and there is none in principle. "If an answer clearly appears to be sham, the spirit of the Code in relation to pleadings, requires it should be stricken out, notwithstanding it has been verified in the usual form."

It disposes (p. 324) of the objection, that a motion on this ground amounts substantially to a trial of the cause upon affidavits, and decides it to be generally untenable.

It imposes, however (in p. 325), the following important limitations on the exercise of the above power, as thus generally asserted:

"This power should be carefully exercised, and not extended beyond its just limits, as above mentioned. It is a power simply to inquire whether there is, in fact, any question to be tried, and, if there is not, but the defence is a plain fiction, to strike out the fictitious defence. Where a defendant, on a motion to strike out his defence as sham, supports it by an affidavit, stating specially the grounds of it, he cannot, as a general rule, be deprived of the benefit of a trial of it in the ordinary mode; a case for striking out does not exist."

This decision may be looked upon as settling, by paramount authority, two important controversies in relation to the operation of the

section.

The first is, as to whether the power was, or was not, strictly confined to defences, stating new matter. This restriction was laid upon it, and defences, by way of denial, held to be altogether excluded from its operation, in Davis vs. Potter, 4 How., 155; 2 C. R., 99; Temple vs. Murray, 6 How., 329; White vs. Bennett, 7 How., 59; Winne vs.

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