69 N.J.L. 487 | N.J. | 1903
This is a suit brought upon the common counts to recover the amount due upon a book account. In addition to' the plea of the general issue, the defendant pleaded a discharge in bankruptcy by the District Court of the United States, District of New Jersey, on the 9th day of September, 1901, which, as the defendant alleges, was granted after the plaintiff’s cause of action, if any, had accrued, and before the commencement of the suit. He further averred that the cause of action set forth in the declaration was not excepted from the operation of the discharge in bankruptcy. The plaintiff, in his replication, replied that the cause of action was excepted from the operation of the discharge in bankruptcy in this—■ that the cause of action was created by the fraud of the defendant. To this replication the defendant filed a general demurrer.
One of the causes of demurrer specified is that a cause of action on the common counts is not excepted from the operation of a discharge in bankruptcy. The demurrant cites in support of his contention Barnes Manufacturing Co. v. Norden, 38 Vroom 493. In that case the defendant was seeking relief from a judgment and execution in favor of.the plaintiff, on the ground that the judgment was obtained on a debt from which the defendant was relieved by his discharge in bankruptcy. The-company insisted that its judgment was for a debt that had been contracted by means of false representations, and hence, under section 17 of the Bankruptcy act- of July 1st, 1898, was excepted from the operation of the discharge as being a judgment for fraud within subdivision 2 of the section, to wit, judgments in actions for fraud. This court held that judgments to come within that class must be such as have been obtained upon proceedings where the ground of the action was the fraud of the defendant. And since the judgment then in question was rendered in contract on the common counts, without any suggestion of fraud, it was held that the defendant was discharged from the judgment. It was very properly contended, on behalf of the defendant, that the case last cited had no application upon the point now raisedj
We conclude that the replication to the second plea'is not good in law. The demurrer is therefore sustained, with costs.