Watson v. Joslyn

29 Vt. 455 | Vt. | 1857

The opinion of the court was delivered by

Redfield, Ch. J.

This is a writ of review. The defendant pleads in bar accord and satisfaction of the judgment sought to be reviewed, and of the subject matter on which the judgment is founded. The plaintiffs’ reply, that they paid the money to an officer having a writ on the judgment against them, after he had arrested the body of Barnard, one of the plaintiffs, to save being committed to jail, and with the express understanding between Barnard and the officer, that he might pay that sum and after-wards, at any time within three years, have his writ of review, the same as if he had not made this payment, and trusting to said understanding, and not intending to recognize the validity of the judgment, but protesting the same to be unjust, and to procure a release from arrest and time to bring the writ of review, the said Barnard did pay said sum to Sivright, the officer, “ which is the same payment named in the defendants plea,” and concluding with a verification.

This is demurred to, both for want of form and substance. The substance of the replication undoubtedly is, that he only paid the judgment to release his body from arrest, and did not compromise the cause of action now prosecuted. This should have been a mere traverse of defendant’s plea of accord and satisfaction of the subject matter of the controversy and cause of action now prosecuted. ' And this seems to us an answer to the plea. The payment of the judgment no more bars the right of review than it does a writ of error or a petition for a new trial.

But the form of replication seems to us objectionable.

1. It is an entire departure from the other pleadings.

2. It introduces new parties upon the record, viz, Sivright, the officer, and a succession of facts, having no connection with the question at issue, and concludes with an obvious repugnance, that the payment in the replication “ is the same payment in said plea alleged.” If so, it is difficult to see what issue or controversy there is between the parties. The purpose of the pleader obviously was to deny the substantial fact of the money named in the plea being given or received in satisfaction of the plaintiffs’ cause of action, which the replication certainly does not do.

3. The plea speaks of no payment eo nomine, whereas the replication refers to the “ same payment,” &c., which is another obvious repugnance.

4. There is no specific denial of any fact alleged in the plea, and in fact no argumentative denial.

5. The defendant might now reaffirm the facts of the plea and aver them to be the same as those alleged in the replication, and thus the series of asseverations become indefinite without any approach to an issue.

These defects, although not very specifically pointed out in the special causes of demurrer, are pointed at in general terms, and seem to us fatal to the replication, which is, in fact, essentially wanting in all the technical requisites of a good plea.

Judgment reversed, and plaintiff has leave to amend on the usual terms.