Crary vs. Ashley & Beebe, 4 Ark. 203

By the Court, Dickinson, J. That the pleas are wholly defective, is abundantly proven by all the authorities; and so this Court has ruled the question, in the case of Pope vs. Tunstall and another, 2 Ark. Rep. 223. An accord must be executed in all its parts, before it can produce satisfaction. An accord executory constitutes no bar. In the present instance, these pleas can be neither termed an accord with satisfaction executed, nor accord in satisfaction executory. They certainly do not fall under the denomination of either of these classes of pleas.

They endeavor to set up unliquidated damages, claimed upon mutual verbal covenants of the plaintiff in error, with one only of the obligees, in discharge of a joint contract with them both, under seal; and that, too, in a case where the plaintiff in error does not allege that he has performed any part of his agreement. He endeavors to excuse himself for his nonperformance, upon the ground that the obligee, with whom he contracted, failed to execute his part of the agreement, which was a condition precedent. These facts certainly show that the pleas were dilatory and frivolous.

They tender no material issue, nor are they adapted to the form of action. They stand upon no higher ground than nil debet or non-assumpsit, in debt. These latter pleas have been held, in such cases, mere nullities, and the party might sign judgment without noticing them.

The rule upon the subject we take to be this, that, if the pleas are informal, but still go to the substance of the action, then the party will not be allowed to sign judgment, but must demur; and the reason given for the demurrer is, that the defendant might obtain leave to amend; but, if they are without color of truth to support them, or where they are intended as mere instruments of delay, they ought to be stricken out. 12 Wend. 196, 223. 10 Wend. 624. 10 Wend. 672.

The pleas we are considering, certainly could not be amended, because they are wholly defective in both form and substance, there being nothing to amend by, and the pleas being so palpably and manifetsly erroneous, that the law will permit the plaintiff to sign judgment as for want of a plea. Although, in these cases, it is prudent to obtain the sanction of the Court, yet the plaintiff may, in general, sign judgment without such authority. In Gardiner vs.

Webb, 17 Pick. 411, upon a promissory note, by the the endorsee against the maker, the defendant pleaded that the note was given as an indemnity against certain endorsements, made, or to be made, by the promisee, for the accommodation of the maker. The plaintiff objected, and the pleas were ordered to be stricken from the rolls. It was the old rule of the common law, if the pleas appeared to be unnecessary and improper, to strike them out, upon motion.

The motion is addressed to the sound discretion of the Court, and the rejection is not made to depend merely because the facts which are set forth in the declaration would not constitute a sufficient defence, but because it is unnecessary to encumber the record with a long statement of facts, which, under no state of things, can be moulded or shaped into form so as-to bar the action. The reason here given we deem satisfactory; and we think it shows that the Court committed no error in sustaining the motion of the plaintiff below. Judgment affirmed.