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Brown agt. Brown and others.

the subject throughout to be governed by other statutes, in force at the time the Code took effect.

It follows, therefore, that the costs in this case are not regulated by the Code, but must be taxed according to the fee bill in force immediately previous to the first Monday of July 1848, which remains, quoad hoc, the law.

COURT OF APPEALS.

BROWN, Appellant, agt. BROWN AND OTHERS, Respondents. This court has no jurisdiction of a suit commenced before a justice of the peace

and discontinued by reason of title interposed; and a suit for the same cause of action commenced in the (late) Common Pleas, or (now) Supreme Court, and appealed to this court.

December Term, 1851. This was an action of trespass originating in a Justice's Court. The defendants interposed a plea of title, to the land in question; thereupon the action was discontinued, and a suit for the same cause of action commenced in the old Court of Common Pleas; and by operation of law was transferred to and vested in the present Supreme Court, and was there finally decided in favor of the defendants. The plaintiff appealed to this court.

The cause was on the calendar at the last September term (1851), and brought on to argument.

HORATIO BALLARD, counsel for respondents, raised and argued a preliminary objection to the jurisdiction of the court, on the ground that the action was, in fact, a mere continuation of the suit before the justice; that the pleadings, and many other things as they occurred before the justice, governed the suit throughout.

GEORGE F. COMSTOCK, Contra. The court took the case (after argument of this question) and held it under advisement until December term, when they dismissed the appeal with costs on the question of jurisdiction (Code, § 11, sub. 2).

Snyder agt. White.

SUPREME COURT.

SNYDER agt. WHITE. An answer denying "knowledge or information sufficient to form a belief” of

a material fact alleged in the complaint, forms a good issue, upon which the plaintiff holds the affirmative; and which gives to the defendant, ou the trial, all the benefits of introducing proof which he would have on a positive denial. The Code makes no difference whether the proceedings are verified or not. (This agrees with the Genesee Mutual Ins. Co.agt. Moynihen, 5 How. Pr.

R. 321). An amended answer which, though in form and phraseology, different from

the original, but in its legal effect, amounting to the same thing, will be

stricken out on motion, It seems, that after issue, notice of trial, and an examination of a witness under

$ 391 of the Code, the defendant can not amend his answer, without applica

tion to the court. The decision of a motion is never regarded in the light of res adjudicata. As

a matter of settled practice, however, it can not be renewed on the same

or additional facts, without leave of the court. m

Monroe Special Term and Circuit, November 1851. Motion to strike out amended answer. The action is on two promissory notes, made by the defendant, dated August 22d 1848, payable to Richard Lusk and Charles Toll, assignees of D. C. Lusk & Co. or bearer; one for $100, payable July 1st, 1850, and interest annually; the other for $90-21, payable to the same persons, September 1st 1850. The complaint was verified January 27th, 1851, and alleges that the notes were duly transferred to the plaintiff, and that he is the holder and owner thereof.

The defendant put in an answer which was verified July 26th, 1851, in which the making of the notes was admitted; that as to the transfer of the notes to the plaintiff, and as to his being the holder and owner of them, the answer stated that the defendant had no knowledge or information sufficient to form a belief. It also set up the defence that the defendant was an infant at the time of the execution of the notes.

On the 30th August 1851, the plaintiff put in a reply, alleging a new promise after the defendant became twenty-one years of age, and on the same day the action was noticed for trial by the

Snyder agt. White.

plaintiff's attorney. On the 13th of September following, the defendant examined the plaintiff as a witness, before the county judge of Wayne county, in relation to matters involved in the issue under 9391 of the Code; after which, and before the circuit at which the action was noticed for trial, and about the 15th of September 1851, the defendant's attorney served the plaintiff's attorney with an amended answer, admitting, as in the first answer, the execution of the notes, and in like manner denying knowledge or information, sufficient to form a belief, as to whether the notes had been transferred to the plaintiff, or whether he was the holder or owner thereof. It also set up the defence of infancy as before. It then set forth in substance, as a further answer to the complaint, the following matters, viz: that the payees of the notes were still the owners thereof as assignees of Dewitt C. Lusk & Co. and that all transfers of them by the payees or any other person, were colorable merely and made with a view of placing the notes beyond the reach of the creditors of D. C. Lusk & Co. and of hindering, delaying and defrauding the creditors of the latter, of whom the defendant was one. That there had been in form a transfer of the notes to the plaintiff by one William Vangorder, which was colorable merely, passing no title to the plaintiff; and that the only right, title or interest of the plaintiff to the notes is from or through such or some other merely colorable transfer, and which was made after the notes were due; that Vangorder, or the person making any transfer of said notes to the plaintiff, had no title thereto or authority to make such transfer, or any interest in said notes. That said notes at the time they were executed, constituted a portion of a fund in the hands of said payees, for the payment of the creditors of D. C. Lusk & Co. and at the same time the defendant was, and continued to be one of their creditors, having an interest in said fund; and that the plaintiff, or any previous holder or owner of said notes, was not and had not been a purchaser thereof in good faith, or for a valuable consideration.

The foregoing are the facts shown by the plaintiff, upon which he moves to strike out the amended answer for irregularity, on the ground that after the defendant examined the plaintiff as a witness, he had no right to amend his answer, and also on the

Snyder agt. White.

ground that the amended answer is identical in legal effect with the original answer.

On the part of the defendant it is shown, among other things, that the examination of the plaintiff before the county judge was had with the view solely to the discovery of new facts not in issue at the time of the examination. That at the Wayne circuit, held on the 21st day of October 1851, a motion was made in behalf of the defendant to strike the cause from the calendar, on which it had been placed pursuant to the notice of trial before mentioned. That such motion was based solely upon the ground of the regularity of the amended answer, and of there having been no reply thereto. That the motion was resisted by plaintiff's counsel, on the ground among others, that the defendant had examined the plaintiff as a witness, before the county judge, after issue joined upon the original pleadings, and that the amended answer was the same in legal effect as the original. That the circuit judge granted the motion, and struck the cause from the calendar, exclusively upon the grounds upon which the motion was based. It also appeared that after receiving the amended answer, and on the 17th September, aforesaid, the plaintiff's attorneys served upon the defendant's attorney a notice that they declined receiving the amended answer, for the same reasons (specifying them) as those for which this motion is now made. On the 21st October the defendant's attorney gave a stipulation, allowing the plaintiff's attorneys twenty days to reply or demur to the amended answer, or to move the court for leave to amend or strike out the amended answer, or any part thereof. This motion is made within the twenty days allowed by the stipulation for that purpose. .

J. C. SMITH. for the Plaintiff:

WM. PORTER, for the Defendante WELLES, Justice. The notion to strike out the amended answer must be granted. I agree with the plaintiff's counsel, that it is identical, in legal effect, with the original answer. The issue upon the question of the transfer to and ownership by the plaintiff of the notes upon which the action is brought, was well and sufficiently formed by the first answer. In the case of the

Snyder agt. White.

Genesee Mutual Insurance Co. agt. Moynihen (5 How. Pr. R. 321), I held that an answer to a material fact stated in the complaint, denying sufficient knowledge or information thereof to form a belief, made a good issue, upon which the plaintiff held the affirmative, and which it was incumbent upon him to prove. Subsequent reflection has confirmed me in the correctness of that decision. This form of an answer is given by section 149 of the Code, and is a mode of denial, where the party is ignorant of the fact alleged, and can not safely deny the allegation, and is not bound to admit it, either in terms, or by omitting to answer. is peculiarly proper, under such circumstances, where the pleading, as in the present case, is required to be verified. The Code, however, makes no distinction in this respect, whether it is, or is not verified.

If, then, an issue is formed by such a denial, it only remains to be determined by the proof, whether the fact thus put in issue, is or is not true; and there can be no doubt, I think, but that the party thus pleading, would have all the benefit upon the trial, and the same right to introduce evidence, that he would have in case the fact had been directly and positively denied. Otherwise, it seems to me, there would be no use or meaning in the section giving this form of denial. The original answer in this case, put directly in issue the facts of the transfer of the notes to the plaintiff, and the ownership of them by him. The amended answer, in so far as it differs from it in language and form, does no more; unless it is in the allegation that the defendant is one of the creditors of D. C. Lusk & Co., and that I regard as totally immaterial. Upon the facts set up in the alleged new matter of the amended answer, it can not be denied that the defendant is liable to pay the whole amount of the notes, upon the assumption that he is a creditor of D. C. Lusk & Co. He clearly could not, in an action by the payees, set off, or recoup, any claim he has against them, even if he had, in his answer, claimed such set off, or right to recoup, which he has not done. According to the case made by the answer, the defendant is bound to pay the notes; after paying them, he might come in for a dividend of the trust fund. Admitting the payees have transferred the notes, either with or without consideration, so as to have lost their claim upon their

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