
    
      James W. Gray, Master in Equity, v. J. J. Gidiere et al.
    
    Every plea is not to be considered frivolous, which on demurrer would be held to be insufficient.
    A plea is not frivolous, upon which, if demurred to by the plaintiff, judgment must be rendered for the defendant.
    Where the facts may support the defence set out in the plea, the plea is not frivolous.-
    Where there is nothing on the face of-the plea which shows the facts alleged to be false, but on the contrary they appear reasonable and possible, the plea cannot be considered deceitful.
    A party cannot, under the fifth rule of court, admit part of a plea to be good, and move to strike out the balance as frivolous.
    
      Before Frost, J., at Charleston, October, 1849.
    The plaintiff declared, in debt on bond. The defendant pleaded three several pleas. A motion to strike out part of the second plea, and the third plea, as “frivolous and deceitful,” was refused. This refusal is the subject of appeal.
    In the argument of the motion, the plaintiff’s attorney relied much on the proceedings in the Court of Equity, in which the bond was given. It may, therefore, serve for the better understanding of the case, briefly to state those proceedings.
    Thomas Napier, having recovered a judgment against Des Coudres, Gidiere’s testator, filed a bill in the Court of Equity against Gidiere, executor; and an order was made in the case July, 1838, that “the defendant, Gidiere, pay into the hands of the Commissioner, within ten days after notice of this or-order, the sum of $6233 14.” For failure to comply with this order, an attachment was issued in January, 1839, and Gidiere arrested. Gidiere, m his answer, claimed the said sum of money and other assets, as surviving partner of Des Coudres. At June sittings, 1839, a decree was made adverse to this claim ; which also declared that the complainant was entitled to be paid his debt, (established by the decree) out of the assets of Des Coudres, (ordered to be paid into court) in the course of administrstion. At the same time Gidiere petitioned that the attachment, under which he was in custody, v should be suspended until the hearing of the appeal from the decree, which he had taken. On this petition it was ordered by Chancellor David Johnson, “that the defendant, Gidiere, enter into bond to the Commissioner of this Court, with two good and sufficient sureties, in a penal sum equal to twice- the amount ordered to be paid into court by Chancellor Dunkin; the condition of the bond to be that the said J. J. Gidiere will abide by and perform the decree, heretofore made, for the payment into court of the said sum of money, within ten days after the decree of the Appeal Court, in the matter decided by this court and by the decree of Chancellor Dunkin, or surrender himself a prisoner to the sheriff under the.attachment now in force against him.” Gidiere accordingly entered into bond with J. W. Gray, Master in Equity, with Watson- and How-land sureties, in the penalty of $ 13,000, conditioned as directed in the order of Chancellor Johnson. The appeal from Chancellor Dunkin’s decree was heard in February, 1841, when the decree of Chancellor Dunkin, on the partnership, was confirmed, and the cause remanded to the Circuit Court on a question of the Statute of Limitations. In January, 1842, the cause was heard on the plea of the Statute of Limitations, and the plea over-ruled. From this decree the defendant appealed, and at the meeting of the Court of Appeals, in February, 1842, the case was ordered to the Court of Errors. In May, 1843, the cause was heard in the Court of Errors, and on the 29th May, 1843, the appeal was dismissed. On the 9th June Mr. Petigru notified Col. Hunt that Gi-diere desired to spend a week at Aiken; but that, on notice, he would return by the next train. Col. Hunt replied, by a note of the same date, that in the absence of Mr. Napier, he should take no. active steps, without intending thereby to alter the relations of the parties. On the 29th June Col. Hunt notified Mr. Petigru of a suit on the bond, Gidiere not having surrendered' himself according to its condition. On the 30th, Gidiere surrendered himself to the sheriff; but the order for attachment was not to be found in his office, and he declined to take custody of Gidiere. It was thought to have been taken out of the sheriff’s office, at the time of Gidiere’s discharge, by O. M. Smith, who acted as the solicitor of Mr. Napier. On the 30th of June a writ was sued out on the bond, which was the commencement of this action. Thereupon a petition was filed by Watson and Howland, the sureties, praying leave to surrender-their principal: and that the action at law be stayed, and the bond cancelled. This petition was heard February term, 1844. Gidiere was in court, and was tendered by his sureties. A decree was rendered, directing the suit at law to be stayed; and that the petitioners have leave to surrender their principal; and thereupon that they have leave to apply for the cancellation of their bond. From this decree an appeal was taken. On the 3d August, 1846, Napier moved for an order on (he Commissioner to deliver the bond to him, which was refused. From this decision an appeal was taken. Both appeals were argued January term, 1849, and the result was a final order that Napier “be allowed to proceed at bis own costs and charges with the suit already brought; the proceeds of the suit to be brought by him into this court, subject to its order; and that the Commissioner attend with the bond, in order to sustain the suit.” “In coming to this conclusion,” it is said in the opinion of the court, “we do not intend to express any opinion whether there is a breach of the condition of the bond or not. That is properly a question of law, and may well be decided on the trial in the law court.” “it may be admitted that there are cases in which this court will not subject a party to the consequences of a technical breach, though one be committed ; but we do not, in this case, see equity sufficient to induce us to put any restraint upon the legal effects of the bond, as against the parties to it.”
    The defendant craved oyer of the bond, and set out the conditions, in the terms of the decretal order, thus: “The condition of the above obligation is such, that if the above bound J. J. Gidiere will abide by and perform the decree heretofore made, for the payment into court of the said sum of money, within ten days after the decree of the Appeal Court, and by the decree of Chancellor Dunkin, or surrender himsell a prisoner to the sheriff, under the attachment now in force against him, then the above obligation to be void; else to remain in full force and virtue.”
    The defendant then pleaded,—
    •First, That the Appeal Court, mentioned in the writing obligatory, has made no decree in the premises against him, according to the form and effect of the said condition.
    Secondly, That at the time of making the said writing obligatory, the defendant was a prisoner under a writ of attachment, issued in this cause; and that from the orders made, the defendant had appealed ; and the appeal was adjourned to the Court of Errors; and that after making the writing obligatory, the writ of attachment was taken away and removed from the sheriff’s office by O. M. Smith, the attorney of the complainant, in the said cause of Napier v. Gidiere ; for whose benefit the said bond is now sued ; and that when the decree of the Court of Errors was rendered, there was no attachment in the office of the sheriff against this defendant, or other authority by the sheriff to receive him as a prisoner. And that, from the time of the making of the decree in the Court of Errors, the defendant was and always has been ready to render himself a prisoner under the attach-v ment in force against him at the time of the making of the said writing obligatory; but the said Thomas Napier did not deliver to the sheriff of Charleston district the said writ of attachment, nor any writ of attachment, against the defendant, whereby the defendant was debarred from rendering himself a prisoner to the sheriff, according to the form and effect of the said writing obligatory.
    And thirdly, That from and after the time when a final decree was rendered in the cause,, mentioned in the said writing obligatory, he was and always has been ready to surrender himself a prisoner to the sheriff of Charleston district, under the attachment which was in force against the defendant at the time of the making of the said writing; but that after a final decree on the said appeal there was no attachment in force against him ; and the complainant in the cause, for whose benefit the said attachment had been issued, and for whose benefit the bond is now sued, would not deliver the said attachment, (or any other authority) for receiving the defendant, as a prisoner to the sheriff, in said writing obligatory mentioned.
    The plaintiff replied to the first plea, and to so much of the second plea as affirms that the writ of attachment, issuing out of the Court of Equity, was taken away and removed from the sheriff’s office by Oliver M. Smith, the attorney of the complainant in the said cause of Napier against Gidiere; denying the same, in manner and formas the plaintiff has alleged in the said second plea; and tenders issue to the country, &c.
    The plaintiff made no replication to so much of the said second plea as avers that when the decree of the Court of Errors was rendered, there was no attachment in the office of the sheriff against the defendant, or other authority by the sheriff to receive the defendant as a prisoner; nor to so much of the said plea as avers that the defendant was and always has been ready to render himself a prisoner, under the writ of attachment, in force against him at the time of the making of the said writing obligatory; but that the said Napier did not deliver the said attachment, nor any other attachment against the defendant, whereby the defendant was debarred from rendering himself a prisoner to the sheriff, according to the form and effect of the said writing obligatory ; nor has the plaintiff made any replication to the third plea; but moves for an order that so much of the second plea, to which no replication is made, and the third plea, should be struck out as “frivolous and deceitful.”
    The order was refused ; because, says his Honor, it is a good defence to the plaintiff’s action for the defendant to show performance, or an excuse for non-performance, of the con¿ption 0f the bond. If the facts, alleged in the pleas, are not sufficient in law to excuse the omission to render the person of Gidiere to the sheriff, the plaintiff may demur ; and if the facts are denied, issue may be taken on them. On the issue in law, or of facts, of which the alternative is presented to the plaintiff, final judgment may be rendered. The pleas are, therefore, not frivolous or deceitful. If the decrees or proceedings in the cause in the Court of Equity present any matter of defence, the plaintiff may have the benefit thereof by proper pleading.
    The plaintiff appealed:
    Because the facts stated in the pleas moved to be stricken out are immaterial, as the bond, in its conditions, presents but two ways of excusing the penalty. 1st. By complying with the decree. 2d. By surrendering himself within a given time — neither of which are averred; and none of the facts stated in the pleas excuse the omission, as there is no1 averment of an offer to surrender within the time limited, in the. bond.
    Hunt, for the motion.
    
      Meniminger, Petigru, contra.
   Curia,per O’Neall, J.

The argument in this case has cov-covered a wide range; indeed, it has been discussed as if the plaintiff had demurred to the defendant’s pleading. This is, however, not so, and we are obliged, after hearing the whole merits of the case, discussed both in law and fact, to confine ourselves to the very narrow question decided by the Judge “are the parts of the 2d plea excepted to by the plaintiff, and the 3d plea, “frivolous," under the 5th rule of Court?”

The terms of that rule — “if any frivolous or deceitful plea shall be filed, the adverse party shall not be obliged to demur to the same, but such plea shall, on motion, be rejected by the Court, and such judgment or order shall be awarded thereupon, as shall be agreeable to justice,” ought to be ahvays closely observed. It is not every plea which, on dimurrer, would be held to be insufficient, which is to be considered frivolous. If that were so, a demurrer need never be resorted to, and the party, without incurring any of the dangers which attend an issue in law, might speculate at pleasure upon the judgment of the Court, by making a motion to strike out any plea.

No doubt the 5th rule covers two sorts of pleas. One, which it terms frivolous, is described by Judge Brevard, in Winn v. Waring, to be “such as are unimportant, a nonsensical trifling with the dignity of the Court and majesty of the law, on which no serious question of law or fact can arise.” Such a plea is, perhaps, better described to be, where, taking every fact stated in it to be true, still it is plain, without reference to reason or authority, that no de-t fence to the action is made, and if issue be taken on it, that would be immaterial.

The other, which the rule terms deceitful, is the sham plea mentioned in the English books, and is, when the facts stated are obviously false, on the face of the plea.

The pleading objected to, when tested by these definitions or descriptions, is not liable to be considered either “ frivolous or deceitful.” To begin with the last first. There is nothing on the face of the pleas which shews the facts to be false; on the contrary, they appear to be perfectly reasonable and possible. There is no pretence, therefore, that the pleas are deceitful.

To test the character of the pleading, under the charge that it is frivolous, it is necessary to separate the consideration of the 2d and 3d pleas.

The plaintiff has replied'to part of the second plea, and I very much incline to the opinion that this, in that respect, concludes his motion. For a party cannot, under the 5th rule, admit part of the plea to be good, and move to strikeout the balance as frivolous. That would be assuming the task of amending his adversary’s pleading, and saving him from the consequences of a demurrer.

But conceding, for the present, that the plaintiff’s motion is in order, it becomes necessary to look to the 2d plea, as a whole, and not to consider it in unconnected parts. Like many other pleas, it presents several facts as constituting one defence, and if this be true, there is no objection to it on that account.

It makes the allegation that, pending the- appeal, the attorney of the complainant withdrew from the sheriff’s office the writ of attachment, under which Gidiere had been arrested; theft when the final decree on the appeal was rendered, there was no attachment in the sheriff’s office; that the defendant, Gidiere, was always ready to surrender himself to the sheriff, but that the complainant did not deliver to the sheriff the writ of attachment, whereby Gidiere was prevented from surrendering himself, in fulfilment of the condition of the bond.

The plaintiff has seized upon the first- part of this allegation, “ that pending the appeal, the attorney of the complainant withdrew from the sheriff’s office the writ of attachment, under which Gidiere had been arrested,” traversed it, and put himself upon the country, in that behalf, and moves to strike out the balance as frivolous. I think, if the plea had stopped at the allegation traversed by the plaintiff, that the charge of “ frivolous,” would have been much better sustained, than it can be in reference to the part under consideration. For then the plaintiff might very well have sa^’ Notwithstanding all yon have said, still the writ of attachment might, at the termination of the appeal, have been in the sheriff’s office; previous to that-time, it was irn-material to you or your sureties where it was.” But the facts stated subsequently, cure this defect, by shewing that, at the determination of the appeal, the writ of attachment had not been restored to the sheriff’s office — that Gidiere was ready to surrender, but that the complainant did not deliver the writ to the sheriff, and thereby he was prevented from complying with the condition of his bond. It may be, that the facts may not support the defence thus set out; but if they do, it will be difficult for the plaintiff to persuade a Court he is entitled to recover. It is, however, not necessary for the Court to say, that the plea is, beyond all doubt, a good de-fence. It is enough to say, that it is not frivolous. For it is far from plain, that the defence is not good. If the plaintiff thinks, upon the facts set out in the plea, that he is still entitled, in law, to judgment for his debt, he has only to demur, and the Court must then meet that question.

As to the 3d plea, it alleges that, at the final decree on the appeal, there was no writ of attachment in force against Gidiere. If that be true, how can that plea be regarded as frivolous? The plaintiff, by demurring to it, would have learned that judgment must have been given for the defendant. This is easiest shewn by supposing, that after ihe Court of Equity made the order for the release of Gidiere, on giving the bond in suit, and after its execution, the Court of Equity had set the attachment aside. What effect would that supposed case have on the defendant’s liability under the bond ? It is clear that Gidiere could not have surrendered himself “ a prisoner to the sheriff\ under the attachment now in force against him.” Because the sheriff had no authority, whereby he could receive or hold him in custody. For the attachment of force against him at the»execution of the bond had ceased to be so. This being so, both he and his sureties would be discharged. For they are not held to perform conditions which, by law, have been, since the execution of the bond, made impossible. It is true, that it is probable this supposed case may not exist; still if it could, on demurrer to the 3d plea, the defendants would be entitled to the benefit of it.- For they simply allege that, at the ending of the appeal, “there was no writ of attachment in force against him,” (Gidiere) and the supposed case would, therefore, come within their allegation. Such being a possible construction of the 3d plea, and which would make it good, as a perfect defence on demurrer, it follows it cannot be frivolous.

The motion is dismissed.

Evans, Wardlaw and Frost, JJ. concurred.

Motion refused.  