35 N.J.L. 262 | N.J. | 1871
Sham pleading, at the common law, was the pleading a matter known by the party to be false, for the purpose of delay or other unworthy object. 1 Chitty’s Pl. 574; 2 Boux. L. Dic. 505; Stephen on Pl. 442.
The plea of the general issue was never denominated a sham plea, because it was a mere denial of the plaintiff's allegations. It introduced no new matter by way of defence, but simply put the plaintiff to the proof of his ease. This the defendant had the right to do in all cases, without file suggestion of a defence. Any other plea might be stricken out as false. Mier v. Cartledge, 8 Barb. 75; Brewster v. Hall, 6 Cow. 36; Coswell v. Bushnell, 14 Barb. 395; 3 Chitty’s Pr. 729.
The plaintiff who treats any plea which, on its face, is a good bar to the action, as a nullity, and enters judgment as for want of a plea, must do so at his peril. He must clearly prove his right so to treat the plea at the risk of delay and costs, and, perhaps, an action for damages. The court will not try the case on affidavits, nor allow the pleading to be disregarded, if there is any reasonable probability of its truth. In other words, the falsity of the plea must be apparent.
In this case, under a rule to take affidavits, the plaintiff having shown, to the satisfaction of the Circuit Court, that the plea was not filed in good faith, but for the purpose of
The view taken of the question already discussed renders it unnecessary to consider the other questions certified, and the Circuit Court must be advised to deny the motion to set aside the judgment.
Beasley, Chief Justice, and Justices Depue and Van Syckel concurred.
Rev., p. 870, § 344.
Rev., p. 866, § 114.