Wesson v. Judd , 1 Abb. Pr. 254 ( 1855 )

Daly, J.

Held:—I. That the defendant’s denial that he had any knowledge or information sufficient to form a belief of the existence of the judgment upon which the supplementary proceedings were founded, was not necessarily sham or evasive. Hance v. Remming, (1 Code R. N. S. 204), was a very different case. There the defendant having entered into an undertaking in a suit between Hance the plaintiff and one Oavanagh, to pay the amount of any judgment that might be recovered against Oavanagh, after the undertaking was given, the suit against Oavanagh was prosecuted and defended, and judgment was recovered against him; and execution having been. returned unsatisfied, an action was brought against Hemming the surety. He employed the same attorney that had defended Oavanagh; and in his answer set up that he had no knowledge or information sufficient to form a belief whether the plaintiff had recovered a judgment against Oavanagh. The Court of Common Pleas struck out the answer as sham and evasive; as Hemming had but to ask his own attorney when he prepared the answer for him to swear to, whether the judgment was recovered against Oavanagh, or not. But the party to the undertaking now in suit, was not bound to search through the public records to ascertain whether the supplementary proceedings were founded upon a judgment as alleged. Hot having, as in the former case, the means of information directly within his reach, he might properly state the want of knowledge or information.

II. That the allegation that the defendant Judd had no knowledge or information sufficient to form a belief whether the defendant Fowlkes was arrested upon order, &e. was had. The fact of the arrest was recited in the undertaking signed by-Judd. He had admitted the fact by signing the undertaking, and could not set up in his answer that he had no knowledge or information sufficient to form a belief upon that subject. The whole of the third paragraph of the answer was therefore stricken out.

III. That the whole of the £ urth paragraph must also be stricken out. The defendant co«ild not aver that he had not sufficient information to form a belief whether the undertaking recited in the complaint was correctly set forth or not. He admitted that he executed an undertaking, and if he was in doubt as to the correctness of what purported to be a copy of that undertaking in the complaint, he should have demanded from the plaintiff or his attorney, an inspection of the original instrument, before making an answer; and if they had refused to allow him to inspect it, the court would by order, compel its production, upon defendant, of .a sworn copy.

The other parts of the answer were unobjectionable. The parts indicated were stricken out; but the plaintiff having asked for too much in his motion, did not recover costs.