Cooper v. Heermance

3 Johns. 315

• Court: New York Supreme Court
• Decided: August 15, 1808
• Status: Published

Opinion

Spencer, J.

delivered the opinion of the court. It has been repeatedly decided in this court, as well as in the English courts, that distinct matters cannot be put in issue by a replication, unless they are necessary to constitute one point. In such case, the facts must have a relation to each other, and be so dependent, and connected, as to render it necessary to state them all, in order to make out the point. This rule is well exemplified in the case of Strong & Udall v. Smith. (3 Caines, 162.)

The statute enumerates several acts of fraud, either of which will invalidate the discharge. Among these, the fraudulent concealment of creditors, the procuring any person to become a petitioning creditor for a larger sum than is really and bona fide due, the commission of perjury, by concealing any part of his estate or effects, are particularly specified; and as either of them would avoid the discharge, they cannot in any view, be considered as dependent or connected facts. The replication, therefore, violates an established rule of pleading, which requires a traverse to be of a single point.

It was suggested, that the decision of the court in the case of Service v. Heermance, seemed to sanction this mode of replying, but there is nothing in that case to warrant the observation.

We are, therefore, of opinion, that the replication is bad; but as the plaintiff has asked leave to amend, on payment of costs, leave is granted for that purpose.

■ Thompson, J. not having heard the argument in the cause, gave no opinion.

J udgment for the demurrant."