15 Wend. 351 | N.Y. Sup. Ct. | 1836
By the Court,
The facts set forth in the pleadings show a gross case of fraud upon the plaintiffs; if they are remediless, there must be some great defect in our system of jurisprudence.
When this cause was before us upon a former occasion, 10 Wendell, 477, the replication merely averred that the amount set opposite to the plaintiffs’ names in the composition deed was $922,18, and that that amount was a debt wholly distinct and different from the demand set forth in the declaration. The question presented by that replication was, whether the deed, which in terms embraced all demands and causes of action, was to be restrained and held operative only upon the debt of $ 922,18,set opposite to the names of the plaintiffs subscribed to the deed. That question was discussed by Mr. Justice Nelson, and shewn, both upon principle and authority, to be against the plaintiffs, and to be within that class of cases which decide that a creditor’s holding a distinct security for a debt, other than the one included in a composition
I have quoted from these cases the expressions of distinguished judges to show what is meant by the act of one cred
In point of form, the only objections to the replication which ' seem to be relied upon are those of duplicity and departure. A replication is not liable to the charge of duplicity, if it contain no more facts than are necessary to make out one point. If, indeed, the replication consists in a denial of the facts set up in the plea, then it may be enough, sometimes, for the plaintiff to. confine himself to a denial of one fact, particularly, if such denial will defeat the plea ; but where the facts asserted in the plea are not denied, but the replication attempts to avoid them, then the replication may, like any other pleading, contain as many facts as are necessary to make out the point
Another objection to the replication is, that it seeks to avoid the deed of release, by averring the consideration fraudulent, which it is argued cannot be done in a court of law. The revised statutes which treat of evidence declare, 2 R. S. 406, § 77, “ In every action upon a sealed instrument, and where a set off is founded upon any sealed instrument, the seal thereof shall only be presumptive evidence of a sufficient consideration, which may be rebutted in the same manner, and to the same extent as if such instrument were not sealed.” The construction which has already been put upon this statute is, that in cases where the suit or the defence rests upon a sealed instrument, the consideration may be impeached in the same manner, and to the same extent as if the instrument was without a seal.
The defendant also seeks to attack the declaration, but having pleaded the general issue, he is estopped from saying, upon his demurrer to the replication, that the declaration is defective. This is a most salutary rule, and this case exemplifies the propriety of it. A plea to the merits is an admission, so far as pleading is concerned, that the declaration is good in form and substance. Hence a party cannot plead and demur to the same pleading. If the defendant thought the declaration insufficient, he should have demurred at once, and not drawn the plaintiff" into a long train of special pleading; and thus made a large bill of costs, and consumed the time of the court in discussing unimportant matters.
Upon the whole, therefore, I am of opinion that the replication is good in form and substance.
Judgment for plaintiff on demurrer; leave to defendant to rejoin, on payment of costs.