138 Mass. 441 | Mass. | 1885
The Superior Court was not required to set aside the verdict in this case. It would be unjust to do so, and thus compel the plaintiff to re-try the case upon the merits. The defendant filed a plea puis darrein continuance, setting up his discharge in bankruptcy, to which the plaintiff replied, that the debt set out in the declaration was created by the fraud of the defendant, and is not barred by the discharge in bankruptcy. The only issue tendered and raised is whether the debt due the plaintiff was created by the fraud of the defendant, and the usual and proper course, under our practice, is to submit this issue to the jury without disturbing the verdict. If the plaintiff prevails on it, he is entitled to judgment on the verdict; if the defendant prevails, he is entitled to judgment, notwithstanding the verdict'. Cronan v. Cotting, 104 Mass. 245.
The defendant’s demurrer to the replication was rightly overruled. It proceeds upon the assumption that the replication avers that the debt of the defendant was created by the fraud of the defendant set out in the declaration. The words used in the replication, “ as alleged in said declaration,” refer to the debt, and not to the fraud, and the meaning is that the debt set out in the declaration was created by the fraud of the defendant.
The replication may be objectionable, because it does not specify the fraud upon which the plaintiff relies; if so, the defendant should have assigned this as a cause of demurrer, in which event an amendment could have cured the difficulty.
Judgment for the plaintiff.
