Granite State Bank v. Otis

Appleton, C. J. The defendants filed brief specifications of the grounds of their defence, in which they allege that they never executed the notes described in the plaintiffs’ writ, — that, if they did, said notes were without consideration, — that usurious interest was included in their amount,— that they were received in payment of an amount less than their face, — that this amount has been paid according to the agreement of the parties, — that the makers were not to be called on for payment, and that the plaintiffs were to rely on the indorsers, &c. The presiding Judge, deeming these specifications "insufficient in law,” ordered a default, to which order exceptions were seasonably alleged and allowed. At common law, but one plea was permitted. The statute of Anne, c. 16, § 4, which is a part of the common law [134] of this State, enacts, that it shall be lawful for any defendant or tenant in any action or suit, or for any plaintiff in replevin in any Court of record, with leave of the Court, to plead as many several matters thereto as he shall think necessary for his defence. Little v. Blunt, 13 Pick, 473. Under this statute, inconsistent pleas were allowed. An opinion was formerly entertained, that mere inconsistency between two given pleas was a decisive objection to their, being pleaded together under the statute. But, if such a rule should prevail, the statute would, in a great measure, be practically repealed. " The object of the statute was to enable the defendant to plead as many pleas as he chooses. * * At this day, however, it appears to be generally understood, as a sound rule in the construction of the statute, that mere inconsistency, between two or more pleas in bar, is no objection to their being pleaded together.” Grould on Pleading, c. 8, § 26. Thus non est factum, usury, infancy, duress and payment may be pleaded together. So, in trespass, not guilty, a justification and accord and satisfaction maybe joined. "The books,” remarks Mr. Justice WestoN, in Gordon v. Pierce, 11 Maine, 215, "are full of double pleas, not to be reconciled with each other.” By R. S., 1857, c. 82, § 18, it is provided, "in all civil actions, if the defendant appears, he shall, at least fourteen days before the next term after his appearance, file with the clerk a brief specification of the grounds of his defence, with a declaration, signed by him or his attorney, that he believes there is a good defence to all or a part of the plaintiff’s claim, and that he intends to make it.” To this specification a demurrer may be filed. By the same section, at the trial, "ora leave, double pleas may be filed.” It is urged that the several grounds of defence, set forth in the specifications filed by the defendants, are inconsistent. But no such restriction is imposed on the defendant, as that the several grounds of defence in the specifications should be consistent with each other. He may specify as many a's he chooses. He is not required to ask leave, as is the case [135] whero several pleas are filed. No court is in session at tbe time of their filing. As, where several pleas are filed, inconsistency between them is allowable, much more is it, where the grounds of defence are to be informally specified, and the statute does not require that any leave of Court should be asked or given. The Court are not to require more than the statute. Neither is it necessary that each several ground of de-fence should constitute a valid and sufficient answer to the plaintiff’s declaration. Each ground of defence is to be looked at by itself. If sufficient, its sufficiency is not to be impaired nor destroyed by the fact that other and insufficient grounds of defence have been set forth in the defendant’s specifications. If there be one valid ground of defence, the defendant is not to be deprived of his right to a jury trial. The declaration, required by § 18, is properly signed and filed. It precedes the grounds of defence, as set forth in the specifications. The statute does not require that it should follow them. It contains all the statutory requirements, and we perceive no reason for adding thereto. By statute, the general issue may be pleaded in all cases. If this was not done, the defendants had a right at any time to do it. Exceptions sustained. CUTTING, Kent, DickersoN and Barrows, JJ., concurred. Davis, Walton and DaNfortk, JJ., dissented, and expressed their views in the following opinion drawn by