Brown agt. Ryckman.

delivered and concurred in the opinions expressed in these cases. The case in 5 Pr. Rep. supra, arose where a denial on information and belief was allowed. Those referred to in 7 Barb. and 6 Pr. Rep., were cases in which the hypothetical answers were as to the acts of the defendants, and presumptively within their own knowledge; and in the case in 14 Barb. Justice WILLARD, who delivered the opinion in 5 Pr. Rep. supra, also delivered the opinion of the court, citing in support of his views, among others, the cases mentioned. These decisions appear to be founded on a rule of the common law system of pleading, which required a plea seeking to avoid the declaration to confess directly, or by implication, that but for the matter of avoidance contained in it, the action could be maintained. (Conger agt. Johnston, 2 Wend. 96.)

Under that system there were but two pleas-the plea in abatement, and the plea of puis darrien continuance, which required a verification. The conscience of the party was not appealed to, and the pleader was 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 agt. Zerega, (1 E. D. Smith, 553.)

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 same reason, is not considered in any of the cases mentioned, except in the case of Ketcham agt. Zerega. The Code has introduced a system entirely new. It is not an alteration; it is a radical change; and § 140 not only abolishes all the forms of pleading heretofore existing, but provides that the rules by which the sufficiency of a pleading is to be determined, are prescribed by the act. This leads to the decision of the question, whether, under the Code, the answer of a defendant under oath, may be hypothetical, and, indeed, whether it can be otherwise in many cases which may arise.

The defendant, in this case, admits that he made the note

Brown agt. Ryckman.

sued, but he does not know whether it was endorsed or delivered to the plaintiff, and he denies any knowledge or information on the subject sufficient to form a 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 whether the plaintiff is the owner or not; but if he is, then there is a defence, and so he tells his story. It is a very natural sequence to the statement of his doubt on the subject, and that doubt, of course, he has a right, and when his conscience is appealed to is obliged, to entertain. It follows as matter of law, if the endorsement or delivery be not proved, that the plaintiff cannot recover; but whether it can be proved remains to be determined by trial. If, however, it should be proved, and the plaintiff is right in court, then the defences alleged are good; and if proved, the defendant must succeed. He cannot state 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 admonishes him on the subject. If, however, the plaintiff did take it, then he took or obtained it under the circumstances and for the purpose stated in the answer. Thus it seems that the defendant could not place his defences before the court in any other mode than the one adopted from the necessities which the new system has created; and had the alternative of admitting what might not be true, and so jeopardise his rights or brave his conscience, and assume to be false a fact alleged of which he was ignorant. This may often be the position of the defendant, in which his rights are not to be restricted, limited, or controlled by any arbitrary rule, not of pleading but of verification, which is the true question in these cases under the Code.

Judge WOODRUFF very justly remarks, in Ketcham agt. Zerega, supra, and at page 560, "It may often be true, that the defendant is wholly ignorant of the facts alleged by the plaintiff, and if so, he cannot be required to admit them. To compel him to do so is to do injustice."

Anonymous.

And again: "It is clear to my mind that the defendant cannot be required, as a condition of averring new matter, to make an admission of the facts alleged, which shall preclude him from denying them on the trial."

For these reasons, I think that a defence may be hypothetically predicated upon a fact alleged in the complaint, not presumptively within the knowledge of the defendant, when he denies any knowledge or information of such fact sufficient to form a belief, and, therefore, that the demurrer to the third and fourth defence is not well taken.

It was also insisted, on the argument, that the fourth defence was objectionable, because it did not set out in detail the facts and circumstances of the procurement of the note by the plaintiff to sue. The statute, before the Code, only required the defendant to give notice that he would insist upon and prove at the trial that the demand on which the action was founded had been bought and sold, or received for prosecution contrary to law without, setting forth any other particulars. (2 Revised Statutes, 4th ed., p. 475.) Nothing more is now required, and the fact of the procurement is alleged sufficiently for the defence it makes.

The judgment must be for the defendant, without costs to either party, and with liberty to the plaintiff to withdraw the demurrer, if he shall deem it advisable.

SUPREME COURT

ANONYMOUS.

In actions on promissory notes against the makers or endorsers, where the answers are only a denial of the allegations in the complaints, and in which no affidavits of merits are made or served, and there is no appearance by the defendants at the trials, and in which inquests are taken, the court will not pre

Anonymous.

sume the defences had been unreasonably or unfairly conducted; but other facts must be established to entitle the plaintiffs to extra costs in such cases. Extra costs are not given to the plaintiff under § 308 of the Code, for the sole purpose of punishing the defendant. They should be given only in actions where two facts concur, viz., 1st. That the defence has been unreasonably or unfairly conducted: 2d. That the ordinary costs are insufficient to compensate the plaintiff for his expenses in the action.

In actions on promissory notes, where the answers contain only a denial of the allegations in the complaints, slight evidence only will be required beyond the facts appearing by the pleadings, to authorize the court to award extra costs to the plaintiffs where inquests are taken.

Madison Circuit, February, 1856.

BALCOM, Justice, presiding. Inquests were taken in several actions on promissory notes against the makers, and in some against the endorsers, in which the answers were simply a denial of the allegations in the complaints. The plaintiffs asked for extra costs under § 308 of the Code, on the ground that the defences had been unreasonably or unfairly conducted.

BALCOM, Justice, held, that extra costs were not given to the plaintiff in such cases, for the sole purpose of punishing the defendant; and said that a percentage on the recovery should be allowed only in cases where the ordinary costs would be insufficient to compensate the plaintiff for his expenses in the action, although the defence had been unreasonably or unfairly conducted; and that he would not presume the defence had been unreasonably or unfairly conducted in actions on promissory notes, where the answers were only a denial of the allegations in the complaints, and in which there were no affidavits of merits filed or served, and no appearance by the defendants to prevent the taking of inquests. That two facts must be established before he would allow the plaintiffs a percentage on their verdicts in these actions: 1st. That the defences had been unreasonably or unfairly conducted, and that slight evidence only would be required in the cases beyond those appearing by the pleadings. 2d. That the ordinary costs were insufficient to compensate the plaintiffs for their expenses in the

actions.

Scovill agt. New.

Such proof was made in these actions, and a percentage on the verdicts was allowed the plaintiffs, sufficient to cover their expenses in the actions over and above the ordinary taxable costs, recoverable of the defendants.

SUPREME COURT.

AMOS S. SCOVILL agt. JOHN NEW.

If an allegation in a complaint be such that the defendant, being examined as a witness, would not be obliged to answer as to its truth, he may, when pleading, deny the allegation, and omit to verify his answer.

But if the defendant, in pleading to such an allegation, declines to answer it at all, on the ground that such answer might subject him to a criminal prosecution, he admits it, for the purposes of the action.

Albany Special Term, Aug., 1855.

MOTION that defendant be required to make his answer more definite, &c.

The action was for a libel published in the Albany Switch, of which the defendant was alleged to be the editor and proprietor. The defendant, in his answer, denied each and every allegation of the complaint, except the allegation that he was the proprietor and publisher of The Switch, which allegation he declined to answer on oath, on the ground that an answer to that allegation might subject him to a criminal prosecution.

The plaintiff moved that the defendant be compelled to make his answer more definite and certain, by amendment, and to admit or deny the allegation in the complaint, that he is the editor, proprietor and publisher of the newspaper therein mentioned; or, that the portion of the answer relating thereto be stricken out as irrelevant.

F. TOWNSEND, for plaintiff.

S. G. COURTNEY, for defendant.