Winslow v. Ferguson

Present — Bacon, Foster, Mullin and Morgan, JJ. By the Court Mullin, J. Whatever other ingredients are necessary to constitute a sham answer, it is certain that falsity is the principal one. And unless the answer in this case is false it cannot be stricken out on motion. There is no ground for claiming that the part of the answer that sets up fraud in obtaining the note is false. The plaintiff concedes, for the purpose of the motion, that it is true; but alleges that so much of the answer as charges that the transfer of the note to him was after maturity, or with notice of any defence to said note is untrue. And it is by reason of the falsity of those allegations only, that he seeks to have the answer stricken out. Under § 152 of the Code, the court is authorized to strike out an answer or defence as sham or irrelevant. Under this provision I apprehend the court is not authorized to strike out a part of an entire answer or put up a separate defence. The whole must be stricken out or none. The power to strike out part of an answer or a defence must be found in some other provision of the Code or rule of practice in force when the Code took effect and not yet abrogated. If then, the part of the answer alleged to be false in this case, is not so connected with that part which is admitted to be true, as to vitiate the whole answer or defence, then this motion should have been denied. But if the matter alleged to be false, is so connected with the matter admitted [442] to be true, as that the latter ceases to be a defence if the matter that is false, is stricken out, then, I think, the falsity being • established of such part, the whole should be stricken out. A defence partly true and partly false,- the part that is true, standing alone, not forming a defence, constitutes a sham answer, within all the definitions of that term. The fraud in the inception of the note, is no defence to the note as against the plaintiff, unless- the defendants can prove that the plaintiff obtained it after maturity, or with notice of the defence, or did not pay a consideration therefor. These allegations are contained in the answer; and if they are untrue, then, under the rule stated above, the answer is false, and should be stricken out. It is a presumption of law that the holder of a negotiable note obtains it before maturity, in good faith, for a valuable consideration. When the maker, or other party to such paper, proves that it was obtained from him fraudulently, the burden of proof is changed, and it devolves on the holder to prove that he obtained the note before maturity and for value. (Rogers v. Morton, 12 W., 487 ; Id. 14 W., 575.) It is alleged in the answer, and not denied by the plaintiff, that the note in suit was obtained by fraud. It devolved upon him, therefore, to establish the facts which must be proved in order to entitle him to recover. Under this state of things, the portion-of the answer of which the truth is not questioned, is a complete defence to the action. When the plaintiff shall give evidence to show that he acquired title to the note before maturity, &c., the defendant will be at liberty to prove that he is not a holder for value, &c., alth ugh such matters were not alleged in his answer. The plaintiff, in his complaint, has alleged that he is a bona fide holder, &c., and those averments are established, in the first instance by presumption. The fraud alleged in the answer, being admitted, the plaintiff is driven tp direct proof of the matters affecting his title, thus alleged. In this aspect of the case, this motion is, in effect, to per [443] mit the plaintiff to establish his case by affidavits, and to exclude the defence. It is wholly immaterial whether the part of the answer ' assailed by plaintiff’s affidavits be true or false, the plaintiff is compelled, by reason of the truth of the residue of the answer, to establish a valid title to the note. The order appealed from should be reversed, with ten dollars costs. Order reversed.