16 N.J. Eq. 112 | New York Court of Chancery | 1863
To a bill for relief, the defendants pleaded an award in bar. The cause was set down for hearing and heard upon the plea. The argument involved both the merits of the plea and the proper subjects of inquiry under it. It was insisted for the defence that the only proper subject of inquiry is whether the plea is in proper form, and that if it is, the plea must necessarily be sustained. The question is not strictly whether the plea is in proper form, but whether in the language of the statute the plea be good; that, is, whether upon the face of the plea it presents, if true, a valid defence to the action. The inquiry when the cause is heard upon the plea, is substantially as if the plaintiff had demurred to the plea. The question is not whether the plea is true, but whether, if true, it is a good defence. This is the obvious meaning of the statute. If the complainant deems the plea bad, the case goes to hearing upon the plea. If he conceives the plea to be good though not true, he takes issue upon it, and proceeds as in case of an answer. Nix. Dig. 99, § 24; Flagg v. Bonnel, 2 Stockt. 82; McEwen v. Broadhead, 3 Stockt. 129.
The subject of inquiry is not the mere technical form of the plea, but the sufficiency of its averments to sustain the
The defendant pleads the pendency of a former suit in bar. He may content himself with stating the pendency and object of the former suit, and averring that the present suit was brought for the same matters. The ordinary form will be found in Beames’ Pleas 330; Equity Draftsman 658; Curtis’ Precedents 170. Or he may omit the averment that the suits are for the same subject matter, provided he state facts sufficient to show that they are so. Flagg v. Bonnel, 2 Stockt. 82.
The defendant in this case has spread upon his plea the substance of a former bill in this court. He has set out in full the submission and the award, and then avers that the subject of this suit is within the award. Now, whether it is or is not within the award, must obviously depend upon the facts stated upon the plea, admitting those facts to be truly
The difficulty in the case has grown out of its complicated character and the peculiar structure of the pleadings. The complainants set out in their bill the history of a long and involved controversy between the parties, including the award which is made the subject of the plea. It is a ground of objection to the plea that it states no new matter not apparent upon the bill, and that the proper relief was by demurrer. But a complainant cannot compel a demurrer upon the facts as stated in the bill, if they are imperfectly, or inadequately stated. The defendant must be at liberty to plead the facts upon which he relies for his defence, in such form and with such fullness of detail as to raise the real question which he desires to present. The question certainly, by a different character of pleading, might have been presented more clearly and with less embarrassment. But although the plea is encumbered with matter not pertinent to the defence, I prefer to dispose of the plea not on any technical ground, but to decide the real question at issue between the parties. That question is whether the submission and award do in fact include the subject matter of this suit.
The controversy grew out of the settlement of the estate of Daniel Davison. The testator died in 1855, leaving, among other children and heirs-at-law, three daughters; Rosetta, who has since intermarried with Ephraim Williamson, Elizabeth, the wife of Ryke J. Suydam, and Sarah, the wife of Henry Johnson, who were also devisees under his will. He appointed his unmarried daughter Rosetta, and his sons-in-law, Suydam and Johnson, his executors, who proved the will and took upon themselves the burden of its execution.
Sarah Johnson had previously been married to Noah Applegate, who was deceased, leaving two children, Daniel and Elijah ; the latter being a minor. His estate, amounting to $1600, was in the hands of the testator, Daniel Davison. Of this sum Sarah Johnson, as widow, was entitled to one-third,
The submission includes three points:
1. "Whether the administrator of Elijah Applegate had any claim against the devisees of Daniel Davison for moneys received by him from the estate of Noah Applegate.
2. Whether Johnson and wife had any lawful demand in right of the wife against said devisees, for moneys received by Daniel Davison from the estate of Noah Applegate.
3. Whether Johnson and wife had any lawful demand in right of the wife, against Williamson and wife and Ann 0. Yanderveer, for interest upon a bond and mortgage given by Daniel D. Applegate.
There is nothing in the submission which can include the subject matter of this suit. •
The facts stated in the plea constitute no bar to the suit. Nothing could be gained by a reference to a master. The question must be decided upon the facts now before the court. An exception to the master’s report, if made by either party, would present the same question again for decision here.
The plea is overruled.