61 Vt. 89 | Vt. | 1888
The opinion of the court was delivered by
The defendant, by a demurrer interposed into his answer, raises the question of the jurisdiction of the Court to entertain the bill. The propriety of this mode of pleading has been considered of late, and the effort has been to adhere to the rules of pleading laid down in the text books and best considered cases.
Incorporating a demurrer into an answer is often done and no violation of the rule is occasioned if the demurrer is left for consideration as if it stood alone. In the old precedents instances may be found of demurrers and pleas incorporated-into answers, but in each case the answer was provisional, the plea ending with a demand for judgment, and then proceeding, “ and
In this case it is urged that a court of equity has no jurisdiction, as a court of law could give the orator an adequate remedy. This objection, if valid,is apparent upon the face of the bill and so is the subject of a demurrer, and if it be sustained the case is at an end. But an objection to the jurisdiction of the court, if the court has general jurisdiction of the subject matter, will not be entertained unless it is brought to a hearing before the expense of a trial upon the merits has been incurred. In 1 Dan. Chan. Prac. 579, it is said that if the objection to the jurisdiction is not taken seasonably by plea' or demurrer and the defendant enters into his defense at large, the court having the general jurisdiction will exercise it. To the same effect are the •cases Cong. Society v. Trustees, etc., 23 Pick. 148; Underhill v. Van Cortlandt, 2 Johns. Chan. 369; Bank of Bellows Falls v. R. & B. R. R. Co., 28 Vt. 470. Indeed the rule in equity •appears to be the same as at law. A plea to the jurisdiction at law is said to be analagous to a plea in abatement and is the •earliest in the order of pleading, and if the general issue be pleaded the jurisdiction is confessed. So in equity it is a dilatory objection that is waived by an answer. In equity, as at law, if the court discovers that under no circumstances has it jurisdiction in the premises, it will, at any stage of the proceedings, dismiss the cause sua sponte, if no objection is raised.
In the case at bar a court of equity has jurisdiction. The sale of the colt to the orator with a lien reserved to the defendant amounted to a mortgage of the colt. The orator all the time had an equity of redemption and after condition broken
In taking the accounts of the parties, the master finds that items 42 and 43 in the defendant’s specification accrued from false representations of the defendant. These items should be disallowed, as in equity no one can be made a debtor by fraud.
The decree is reversed and the cause remanded with a mandate to enter a decree for th'e orator to recover the sum of $42.98 reported by the master, with interest thereon from March 1, 1884, and that the further prosecution of the suit at law in favor of the defendant against the orator mentioned in the pleadings be perpetually enjoined.