
    John Bailey v. John Wilson. The Same v. John Patton.
    Columbia,
    May, 1828.
    In a suit by Sum. Pro. founded on a former judgment, the plaintiff must annex a copy of the judgment to the copy-process served on the defendant. And the omission need not be pleaded in abatement, but may be taken advantage of by motion.
    In suits within the summary jurisdiction, all special defences must be pleaded, or they will not be admitted in evidence, if objected to. To an action oi debt on judgment, the plea of payment is special, and therefore, if the action is brought by Sum. Pro. that defence must be formally pleaded, to be admitted in evidence.
    Tried before Mr. Justice James, at York, Fall Term, 1827.
    As these two cases involved the same question, they were argued and determined together. They were suits within the summary jurisdiction of the court, brought to recover balances, claimed to be due on judgments heretofore recovered by the plaintiff against the defendants, severally, in the Court of Common Pleas for the District of York. In the first mentioned of these cases, the plaintiff had omittted to annex to the process, a copy of the judgment on which his action was founded; and at the trial, the defendant moved to quash the process on that, ground. But the Court held that the objection could be made by plea in abatement only, and overruled the motion. The defendants then offered, in both cases, to go into evidence of partial payments, reducing tlie sum due in each caso below the juris-" diction of the Court; but as this defence had not been formally pleaded, his Honor refused to admit the evidence, and gave judgment for the plaintiff.
    The defendant in the first case, now renewed in the Court of Appeals his motion to quash the proceedings. And in both cases, the defendants moved for new trials on the ground that the evidence of partial payments had been improperly rejected. And for the defendants it was contended, that formal pleas are unnecessary in actions by summary process, but that verbal notice of the de-fence intended to be relied on, is, in all cases, sufficient, and such notice had been given m these cases. That, at least, it was competent for the defendants to shew, that at the time of action brought, the plaintiff’s demand was below the jurisdiction of the Court, and on this ground, the evidence ought to have been received.
    37th Rule.
   Johnson, J.

delivered the opinion of the Court.

The rule of Court expressly requires that a copy of the plaintiff’s cause of action, if it be in writing, shall be endorsed oi\ or annexed to the copy-processl And this is the more necessary, as from the concise manner in which, according to the practice of the Court, it is usually set out in the body of the process, the plaintiff’s case, would, otherwise, be imperfectly understood. The rule is rigidly adhered to in practice, and ought not to be departed from.

The omission is, I think, analogous to the want of a bill of particulars to a declaration, and in that form the defendant was not bound to plead to it, but might have demurred, or, as in this case, moved to quash the proceedings, (Bacon Abr. Abatement H.) and that motion is now granted as to the case first in order.

In relation to the remaining question, I will observe, passingly, that I am not satisfied that the result contemplated by the defendant’s counsel, would have necessarily followed, if he had succeeded in getting in the evidence, for I am not prepared to say, that if the judgments had been reduced, even within the exclusive jurisdiction of a magistrate, that the Court in which the judgments were obtained, was excluded from carrying them fully into effect; but the case has been placed here entirely upon the state of the pleadings, and it will be enough for the present, to decide it upon that ground.

Vide 1 Ch. PI. 481, and statute 4 Ann, c. 16, P. L. 95.

Rogers, for the motion.

Williams, contra.

The defendant claims the right to have been let into evidence of payment, on the ground that formal pleas are dispensed with in the summary jurisdiction both by law and the usage of the bar, amongst whom strict pleading is rarely insisted on. The same necessity exists as well in this as in the higher jurisdiction of the Court, for apprising the plaintiff of the grounds of the defence, and when that defence consists of a matter pleadable at law, I cannot conceive of any forms more convenient or appropriate than those established by the practice of the Courts: And if a case should occur in which these would not apply, and that might well happen, as this is a species of equity jurisdiction, something in the form of an answer would be admissible.

I know of no provision in the act creating this jurisdiction, which dispenses with a written plea in some form or other; on the contrary, the defendant is required by the very terms of the summons, to file his defence with the clerk of the Court, and to give notice thereof to the plaintiff. I am aware that a mistaken liberality has led the bar, very generally, to dispense with formal pleas in those cases, and with respect to these matters, the Court will permit them to manage them in their own way, so far as they agree; but with respect to the Court itself, there can be but one rule; the law must be enforced. In the last case, the motion is, therefore, refused.  