27 Vt. 208 | Vt. | 1855
The opinion of the court was delivered by
This recognizance was given on the appeal of the case in favor of the plaintiff against Hamilton Babcock. That suit was an action of trespass to recover damages for an injury to real estate, and while the suit was pending, the defendant deceased. It is stated in the plea, and the facts are admitted by the demurrer, that an administrator was appointed on the estate of Babcock, that his appearance was entered of record, and that a final judgment was recovered by the plaintiff against the estate. The suit was properly continued in court and prosecuted to final judgment against the administrator; for under the provisions of the Comp. Stat. 341, §10, 12, the cause of action survived against the estate. If commissioners for the allowance of claims against the estate had been appointed, it probably would have operated as a discontinuance of the suit, and as a discharge of the recognizance; but as none were appointed, the suit was properly prosecuted in court, and the recognizance remained as obligatory, as if the death of the party had not intervened. Peake v. Keyes, 3 Vt. 317.
The material question in the case arises upon a demurrer to the defendant’s plea in bar. The plea in substance states, that the judgment in favor of the plaintiff against the estate of Babcock was recovered under a fraudulent agreement between the plaintiff and the administrator that no defence shoud be made in the case. It is averred that no legal claim for damages existed, and that none could have been recovered if the administrator had properly defended the suit. The fact that the judgment was fraudulently obtained for the purpose of defrauding the defendants as bail, and to compel the bail to pay the plaintiff the amount of damages and costs, is distinctly stated in the plea, and admitted by the demurrer. The question arises whether such matter constitutes a good defence in a suit on this recognizance.
We do not see any duplicity in this plea which renders it defec
The judgment of the county court is affirmed.