Onion v. Clark

18 Vt. 363 | Vt. | 1846

The opinion of the court was delivered by

Bennett, J.

In this case the petitionee, Clark, pleads in bar, setting up, that, prior to the attachment of the premises by Onion, he became a bankrupt, under the laws of Congress, and that the lands specified in the petition passed to his assignee. If the plea contained nothing more, it would be ill in substance, with reference to Onion’s title. The petition does not allege, that Onion claims title under Clark — but only that he claims by virtue of an attachment and levy of execution, and without specifying whom the execution was against. Neither is there any averment in the plea, that Onion claims title under Clark ; but the plea concludes with a general denial, under an absque hoc, that Onion has, or ever had, any title in any part of the premises.

If Clark’s title passed to the assignee, under the bankrupt law, it would be a good bar to this proceeding, though doubtless the petition might be so amended, as to bring the assignee before the court. The denial of any title in Onion, under the absque hoc, is a full answer to the petition, unless the plea is bad in form. It is contended, that the plea is double, containing two distinct matters of defence. The pleader doubtless considered all, that is stated in the plea with reference to Clark’s bankruptcy, as mere matter of inducement to his special traverse; but even-if it could not be so considered, we still do not think the demurrer available. The ground of the demurrer was duplicity ; but duplicity can be reached only by special demurrer, which must specially point out in what the duplicity consists. You must, as is said, lay your very finger upon it. Riley v. Parkhurst, 1 Wils. 219. Lamplough v. Shortridge, 1 Salk. 219. 2 Johns. 433. Currie et al. v. Henry, 2 Johns. 433. But in the demurrer in this case it is only averred, that the plea contains two distinct matters of defence, — which is only a general definition of duplicity and is not sufficient. We must therefore treat it as a general demurrer, before which the plea will stand.

Judgment of the county court affirmed.