The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-02-18
Court Of Common Pleas.
DECISION OF JUDGE BRADY UPON TIE MATURITY
or A PROMIaSORY NOTE.

ton against the maker of q promissory note. The
complaint alleges the making of the note, that it
has matured, that the whole amount is duo to the
plaintiff that it was endorsed and delivered to him
by the payee therein named, and demands judgment
for the amount thereof The answer first on infor-
nation and belief, says that the plaintiff Is not the
holder owner of the note and that E. F. Brown is
the owner and party in interest. The answer then,
secondly separate defence, alleges chat the note
given to f. f. Brown for services to be perform
ed, and that the consideration thereby failed and
further in this connection that if the plaintiff Is the
owner he took it with notice Of such failure. The
answer then, thirdly, as separate defence, says
that the defendant has knowledge or information
sufficient to form belief that the said e.
F. Brown endorsed or delivered the note
to the plaintiff for o valuable or any
consideration. The answer, then f0urthly, as q
further and seperate Defence alleges that the plain
t is an attorney at law, and ii he is the owner Of
cutting it contrary to the statute in such made
and provided. The plaintiff demurs to the whole o.
the answer, except that part Of it denying the en-
d0rsement or delivery of the note by the payee, and
for reasons set out in detaibut in reference the
second and fourth defences more particularly tina
they are alphabetically stated. The allegations tina
the plaintiff is not the owner and holder of the uote
and that E. +. Brown is the owner and real party
in interest create no issue aud amount to q mere
traverse. which is not recognized by the Code. They
do not deny the property in. and possession Of
note by the plaintiff, and yet alleso the he
long TO another. II these allegations cd, as
denial, they would he bad for duplicit,. Each de-
fence must be separately stated and be an answer
to the cause Of action to which it is addressed Go
Pr. Rep, 6S; Sand, 2l0; Pr. Rep, 242.) Perhaps
il the denial OF the endorsement delivery not
set up as separate defence the allegations just
mentioned would be consistent with it and sustained
As to the first defence therefore the demurrer is well
taken, but different considerations suggest them.
selves as to the residue of the answer. am aware
that in several hypothetical pleading has been
declared to be obnoxious &c Pr Rep 81, 81, 40l. IA
Barb. 533 Pr. r. IA, Barb S0,) and an examina.
ton of these shows that the peculiar form Of
denial allowed by the Code has not received the
sideration which it required. suggest this with
due Difference to the learned Judges who delivered
and concurred in the options expressed in these
cases: The case in Pr Rep supra arose whore
denial information and belief was allowed Those
referred to in Barb and Pr. Rep, were cases in
which the hypothetical answers were to the acts
OF the defendants, and presumptiyely within their
Willard, who delivered the opinion in Pr. Rep.
supra, also delivered the opinion OF the court citing
III support OF bis views, among others, the cases
mentioned. These decisions appear to be founded
which required plea seeking to avoid the declara
ton to confess diectly Or by implication, that but
for the matter OF avoidance contained in it, the action
could lie maintained. (C0nger Johnston, 2 Wen.
Oeu, SOl SYSTEM tuefe were Dut Two pleas
the plea in abatement, and the plea opriAs dosrien
continuance, which required veritication. The
conscience Of the party was not appealed to. aud
the pleader not called upon to consider what his
client could declare on oath, but what form he
should adopt to place the defence on the record
But hypothetical pleading, even under that system,
was not always condemned, as illustrated by Judge
Woodruff in Ketcham VS.. Zerega, LIST Il. d. Smith,
$50. The difficulty under which the defendant must
rest as to the denial of what another did, which he
cannot deny, being ignorant thereof, and which he
cannot admit for the sumo reason, is not considered
in any Of the cases mentioned except in the Of
ketcham vs. Zerega. 1ne Code has introduced q
System entirely new 1t ID not an alteration it is
radical change, and section l40 not only aboshes
all the forms OF pleading heretofore existing, but
provides that the rules by which the suiciency Of
pleading Is to be determined, prescribed by the
act. This leads to the decision of the questi N,
whether under the Code the answer of a defendant
under cath may be hypothetical, and indeed whether
it can he otherwise in many cases which may arise
The defendant in this case admits that he made the
note sued, but be does not know whether II was en-
dorsed or delivered to the plaintiff. and he denies
any knowledge or information on the subject suif
cient TO form belief which puts that fact In issue.
Unless he denies the allegation positively, there is
no other mode of reply. He has no alternative.
The act prescribes the manner OF his denial, and
leaves him no choice. The denial Is itself, In its
own nature, Hypothetical. He does not know whe-
ther the plaintiff is the owner not but if he Is,
then there s defence, and 30 he tells his story IL
is very natural sequence to the statement OF bis
doubt on the subject and that doubt, of course he
has right and when his conscience is appealed to,
is obliged TO entertain. II follows as matter OF
law, the endorsement or delivery be not proved,
that the plaintiff cannot recover; but whether 1t
ran be proved, remains to be determined BY trial.
IT, however it should be proved and the plaintiff Is
right in court then the deiences alleged are good;
and If proved, the defendant must succeed He
cannot state that the plaintiff took the note with
knowledge of the failure Of consideration,
because he don't know whether he took the
note at all or not, and his oath adno-
nshes him on the subject. II, however, the
plaintiff did take 1t, then he took or obtained 1t I'M
der the circumstances and for the purpose stated IN
the answer. Thus 1t seems that the defendant could
not place his deences before the Court in any other
mode than the one adopted from the necessities
which the new system has created, and had the al
tentative Of admitting what might not be true aud
30 jeopardize his rights brave his conscience and
assume to be false fact alleged OF which he was ig
norant This may often DO the position Of the de
PENDANT In which his rights not to DO restricted
limited or controlled by any arbitrary rule, not o
pleading, but Of veriAcaton, which Is the true ques
lion in these cases under the Code. Judge Woodruff
very justly remarks In Ks.cham Vs. Zerega, supra
and at page SEQ" 1t Znay often be true that Ia
Ia - Ia oil md