Ryle agt. Harrington.

cept them and deliver up defendant's note; and that Searle still holds those three notes subject to plaintiff's order; and he, the defendant, therefore insists that the plaintiff has no right to the note sued on, and has given no consideration for the same.

As this answer is under oath, the law requires that, like any other sworn statement, it should be so construed as to make all its parts, if possible, harmonize with, and not contradict, each other. When, therefore, in the first branch of the answer, the defendant says he made the note without consideration, he must be understood as meaning that, in his view of the law, the matter, as subsequently explained by him, was no consideration. The judge, at the trial, however, took, and I think correctly, a different view of the law; and as no evidence was offered to support the averment, that the three substituted notes were ever procured or tendered, the whole defence failed, and there was no alternative but a verdict for the plaintiff.

The judgment, then, rests on two propositions, namely, that the first branch of the answer, interpreted by the whole, is no defence in law; and that the second branch, if a sufficient defence in law, is not sustained by the proofs offered at the trial. Motion for new trial denied, with costs.

I have examined this case as if it were regularly before me. It is proper, however, to add that the practice is not perfectly clear. As to the unfitness of a single judge sitting in review, upon the rulings of another single judge of the same court, there can be no doubt. The superior court, in 1851, to prevent such an occurrence, provided, by an express rule, that no alleged errors of law, in the trial before the jury, would be considered at special term—that is, by a single judge, "unless by the express direction of the justice before whom the cause was tried." And in the very next year, when the legislature had the Code under consideration, an amendment was introduced, seemingly to give greater effect to the suggestion of the superior court. Prior to that time, motions for new trials on exceptions were required, "in the first instance, to be heard and decided at a special term;" unless the judge trying the cause

Van Buskirk agt. Roberts.

should send the case directly to the general term. But by the amendment of 1852, it is declared, that such motions "must, in the first instance, be heard and decided at the circuit or special term, unless," &c. (Code, § 265.)

Why was this change from the indefinite to the definite article, unless to prevent "an appeal from one judge to another in the same court "—a proceeding which, as the superior court had very justly observed, (in 4 Sand. 701,) "should never be permitted where it can be avoided."

SUPREME COURT.

THOMAS VAN BUSKIRK agt. MARSHALL O. ROBERTS.

A defence consisting of matter in abatement only, cannot be set up in an answer containing matters in bar of the action. (The case of Gardiner agt. Clark, 6 How. Pr. R. 449, fully concurred in; to the same effect see King agt. Vanderbilt, 7 id. 322; Zabriskie agt. Smith, 3 Kern. 322. Adverse, see Sweet agt. Tuttle, 10 How. Pr. R. 40; Mayhew agt. Robinson, id. 162; Bridge agt. Payson, 5 Sand. 210.)

The provision of the Code abolishing the forms of pleading, does not disturb the common-law rule as to the order of introducing matters of defence. Now, matter in abatement is not a defence to the action. It would be a perversion of language to call it such. There is no propriety in calling matter, which is only in abatement of the action, an answer to the cause of action. The well recognized distinction has always been between matters in abatement and matters in bar, or defence of the action.

Cayuga Special Term and Circuit, January, 1857.

THE Complaint is upon an alleged contract between the plaintiff and defendant, by which the defendant, being a common carrier of passengers for hire from the city of New-York, via Chagres, to San Francisco in California, agreed with the plaintiff to transport him and his two hired men from New-York to San Francisco for the sum of $200 each-$600 for the three, which was paid by the plaintiff to the defendant in advance; whereupon the defendant agreed to carry the plaintiff and his

Van Buskirk agt. Roberts.

said two hired men from New-York to Chagres by the steamer Ohio, and from Panama to San Francisco by the steamer Republic.

The complaint alleges that in pursuance of such agreement, the plaintiff and his said two hired men embarked by defendant's direction on board the Ohio, and on arriving at Havana were transferred to the steamer Falcon, upon which they were conveyed to Chagres. That on arriving at Panama, the defendant wholly neglected and refused to furnish and provide, by said steamer Republic or otherwise, a passage for plaintiff and his men to San Francisco, &c.; and stating various items of damage in consequence of the defendant's breach of his

contract.

The answer of the defendant sets up two defences. The first is to the merits of the action, and the second is in the following words:

"And for a further and separate defence to this action, this defendant says that, at the several times in which the agreements in said complaint set forth are therein alleged to have been made, George Law and Bowes R. M'Ilvaine were owners jointly with this defendant of the steamship 'Ohio,' in said complaint mentioned, and the said George Law, Robert L. M'Intosh and Francis Morris were owners of the steamship 'Republic,' in said complaint mentioned; and that the agreements and undertakings in the said complaint set forth, if any such there were, were made by this defendant, jointly with the said George Law, Bowes R. M'Ilvaine, Robert L. M'Intosh and Francis Morris, (all of whom are still living,) and not otherwise. Wherefore, this defendant claims and objects that the said George Law, Bowes R. M'Ilvaine, Robert L. M'Intosh and Francis Morris are necessary parties defendants to this action, and that there is a defect of parties defendants herein, in this, that the four last-named persons are not made parties to this action: wherefore this defendant demands that the said complaint be dismissed, with costs."

A motion is now made to have this second defence stricken out, upon the ground, among others, that it contains only mat

Van Buskirk agt. Roberts.

ter in abatement of the action, which is waived by putting in an answer to the action upon the merits.

J. C. SMITH, for plaintiff.

LE ROY MORGAN, for defendant.

WELLES, Justice. After a careful consideration of the question, whether a defence consisting of matter in abatement only, and which is not a bar to the action, can be set up in an answer containing matters in bar of the action, my own judgment is convinced that it cannot be done. I have been brought to this conclusion principally by the reasons contained in the opinion of Mr. Justice ALLEN, in Gardiner and others agt. Clark. (6 How. Pr. R. 449.)

The same opinion is expressed by Justice JOHNSON, in King agt. Vanderbilt, (7 id. 385,) where Gardiner agt. Clark is cited with approbation. And, in Zabriskie and others agt. Smith, (3 Kern. R. 322,) Judge DENIO, who delivered the prevailing opinion of the court of appeals, approves of the reasoning of Judge ALLEN in Gardiner agt. Clark.

Opposed to these authorities are two cases decided by the general term in the eighth district,-(Sweet agt. Tuttle, 10 How. Pr. R. 40, and Mayhew agt. Robinson, id. 162,) and one case decided by the superior court of the city of New-York, at general term. (Bridge agt. Payson, 5 Sandf. Sup. C. R. 210.)

Upon authority, the question stands so nearly balanced that, in the decision of the present motion, I feel at liberty to follow my own decided convictions.

It is agreed in all the books that, before the enactment of the Code of Procedure, a plea in bar was a waiver of all defences in abatement of the action, and that they could not be interposed together.

It is equally well settled that, in an action upon a contract, the objection that there were other persons jointly liable with the defendant who were not sued, could only be taken by plea in abatement.

These are propositions too well settled to require the cita

Van Buskirk agt. Roberts.

tion of authorities. That the Code has not abrogated these rules, is shown by Justice ALLEN, as I think, unanswerably, in the case of Gardiner agt. Clark, above cited.

It is not claimed, in any of the cases where the contrary is held, that the Code contains any such express abrogation. In Sweet agt. Tuttle, supra, GREEN, Justice, asks the question, whether the Code has changed this rule of pleading? He proceeds to say, that no special provision has been made in the Code for the case, and that the answer to the question must be deduced from a comparison of the various provisions of the Code on the subject of pleading. He then refers to § 140, which abolishes the forms of pleading, &c., and provides that the forms of pleading, and the rules by which their sufficiency is to be determined, shall be those provided by that act. To § 167, which relates to the complaint: to § 150, which allows the defendant to set forth as many defences and counter-claims as he may have, &c.: to § 144, providing that the defendant may demur to the complaint, when it shall appear upon the face thereof, among other things, "that there is a defect of parties, either plaintiff or defendant :" to § 147, providing that when any of the matters enumerated in § 144 do not appear upon the face of the complaint, the objection may be taken by answer: and to § 148, which provides that if no such objection be taken, either by demurrer or answer, the defendant should be deemed to have waived the same.

From the provisions contained in these sections, particularly in §§ 150 and 167, the learned justice concludes there is a manifest radical difference between those provisions and the pre-existing rules of pleading in the particulars to which those sections relate.

In regard to § 140, it only relates to the forms of pleading, and declares that such forms, and the rules by which their sufficiency shall be determined, are prescribed by that act.

The present motion does not involve, in any sense, the form of the pleading which the plaintiff asks to have stricken out. On the contrary, it is simply a question of the order of pleading. Whether matter in abatement may be pleaded with mat