Downer v. Rowell

26 Vt. 397 | Vt. | 1854

The opinion of the court was delivered by

Isham, J.

To this declaration in debt on judgment, the defendant has pleaded a discharge under the late bankrupt act. If the answer to the plea is to be regarded as a technical replication, it is manifestly defective under this demurrer; as being double, and containing several distinct and independent matters, each of which constitutes a sufficient answer to the plea. This is not permitted in a replication. The defendant may plead several pleas, each of which may contain distinct matters of defence; but the replication to each of the pleas must be single, and contain only one answer to the same plea. Chitty on Plea. 641.

The plea in this case was fully answered and avoided, by setting forth in the replication the conveyance to David and Hiram Moore, if that conveyance was fraudulent. This it was proper to reply, and state such facts as would show the conveyance to be fraudulent, as they would make but one connected proposition. Chitty on Plea. 641. 1 Burr. 317. But when in addition to the statement of that conveyance, the party sets up other conveyances as fraudulent, made to other persons, and of other property, the replication contains more than one answer to the plea, and tenders several and distinct issues, which must necessarily lead to several traverses. In such case, the replication is defective on special demurrer.

It is insisted, however, that under the 4th section of the bankrupt act, it is not necessary that a technical replication should be filed in answer to such a plea, and that it is sufficient to give the defendant a written notice specifying the fraudulent act and concealment upon which the party relies, to avoid the effect of the plea. It is also insisted, that if this replication is defective on demurrer, it is good as a written notice under the statute; and that under a notice of that character several distinct acts of fraud may be stated and proved on the trial of the case. It is probably true, and such we think is the proper construction of the act, that the plaintiff may adopt either of those methods, and may set up this matter in avoidance of the plea by a replication, or by a notice under the statute, at his election. If he elects to give a written notice, he may state the different acts of fraud, which exist in the case, and prove them on the trial, though they are distinct and independent in their character. But if he adopts the form of a special replication, thereby calling for a rejoinder, and a special traverse, it must be single in its character, or the defect will be reached by a demurrer. This replication, we think, is defective in this particular.

In relation to the defense set up in the plea, we think that matter must be considered as settled in this state by the decision of this court in the case of Harrington v. McNaughton, 20 Vt. 293. In that case it was held, that the certificate of a bankrupt is a bar to an action upon a judgment recovered pending the proceedings in bankruptcy, and before the granting of the certificate, where the debt upon which the judgment was rendered, was due at the time of the decree in bankruptcy. These are the facts set up in this plea and are admitted by the demurrer. The judgment, therefore, upon which the plaintiff has declared, must be considered as barred by this certificate.

We are aware that a different rule has been adopted in some of the other states. Woodbury v. Perkins, 5 Cush. 86. Pike v. McDonald, 32 Maine 418, and in other cases which have been referred to; while other states have applied the rule adopted in the case from 20 Vt. 293; Spaulding v. Dixon, 21 Vt. 45. Fox v. Woodruff, 9 Barb. S. C. R. 498. Clark v. Rowling, 3 Compt. 216.

The decisions in different states are in conflict with each other on this question, and as the matter has been investigated and decided in this state, we must regard the subject as not open for further consideration.

The judgment of the County Court is affirmed.