Bell v. Eaton

| Ind. | Nov 15, 1867

Ray, J.

— This was an action by the appellee, charging the appellant with a breach of a marriage contract. The answer contained'two paragraphs ; the first was a special denial, and the second as follows: “And for second defense, the defendant says that after the making of the promise and agreement in said complaint mentioned, he learned that the plaintiff had been, prior to his acquaintance with her, delivered of a bastard child, and he avers that through the fraudulent concealment of the plaintiff he was, at the time of the making of said agreement, ignorant of the fact that the plaintiff had been so delivered of a bastai’d. "Wherefore he demands judgment.”

J. L. Worden and J. Morris, for appellant.

A demurrer was sustained to this paragraph. This was error. If, through the fraudulent concealment of the appellee, he was kept in ignorance of the fact charged, it was a good defense to the action. If it is objected that the paragraph is argumentative, we must regard the argument as so conclusive as to amount to an express allegation of the facts, when tested by a demurrer.

The judgment is reversed, with costs, and the cause remanded, with directions to overrule the demurrer.