
    Cecelia L. Bornstein vs. Axel E. Johnson
    No. 79508.
    July 20, 1929.
   HAHN, J.

Heard on demurrers to defendant’s special pleas.

This is an action of assumpsit, on a promissory note, by tbe payee against the maker.

Defendant claims tbe right to file tbe pleas ;by virtue of General Laws, Chapter 333, Sec. 22, which allows tbe filing of any equitable defence in an action at law, upon which an unconditional judgment may be rendered for the party filing such defence; and defendant claims that such pleas, being of an equitable nature, cannot be the subject of demurrer.

■Such pleas filed under tbe statute are, however, subject to a demurrer. In the following cases, which were actions at law, demurrers to equitable pleas filed under tbe statutes were sustained.

Upham vs. Hamill, 11 R. I. 565;

Newport Hospital vs. Carter, 15 R. I. 285;

Amer. Bldg. Loan Co. vs. Booth, 17 R. I. 736.

Tbe demurrer charges that tbe defendant , bas commingled defences in each of tbe pleas, that tbe pleas are bad for duplicity. In .the following case it -is said that a plea is had for duplicity if- it “consists of several distinct and independent matters alleged to tbe same point and requiring different answers * * * but tbe rule ■is not violated by introducing several matters into a plea if they be constituent parts of tbe same entire defence.”

McAleer vs. Angell, 19 R. I. 688, 689.

This is true in equity as well as at law. Corpus Juris, under the subject “Equity,” states tbe rule thus:

“A plea which states facts constituting more than one ground of defense is bad for duplicity.”

21 C. J. p. 461.

In tbe present case, do tbe pleas set forth more than one distinct ground of defence? Each plea charges, among other things, non-delivery and want of consideration. Either non-delivery or want of consideration is a complete defence to a note between tbe original or immediate parties. Without delivery tbe note has no ‘ life; without consideration there is no recovery.

General Laws 1923, Chap. 227, Secs. 22 and 34;

8 Corpus Juris 293.

For plaintiff: John P. Beagan.

For defendant: Ernest L. Shein.

The pleas accordingly appear bad for duplicity. But even if the pleas are not bad for duplicity, they do not seem to set forth equitable defences or matters of defence requiring to be specially pleaded. Non-delivery and want of consideration may both be shown under the general issue.

Sheer vs. Hall & Lyon Co., 36 R. I. 47;

Lee vs. Benjamin, 40 R. I. 567;

Lopato vs. Hayman, 43 R. I. 271.

The circumstances attending the making of the note, which circumstances defendant has set forth briefly in his special pleas, may also be shown under the general issue. See the two last cases above cited. The circumstances in Lee vs. Benjamin are not unlike those of the present case, and the action is by the payee against the maker.

Where matters alleged in a special plea may be shown under the general issue, the plea is bad and a demurrer thereto should be sustained.

Cole vs. Lippitt, 23 R. I. 541;

Granite Bldg. Corp. vs. Greene, 25 R. I. 586.

Demurrers sustained.  