Hurd v. Indiana Mutual Fire Insurance

1 Ind. 162

• Court: Indiana Supreme Court
• Decided: July 1, 1848
• Status: Published

Opinion

THIS was an action of assumpsit upon a promissory note made on the 31st of December, 1838. The defendant filed two pleas. 1st. The general issue; 2d. That, on the 13th of May, 1843, before the commencement of this suit, the defendant was discharged from all his debts, contracts, and other engagements, by the District Court of the United States for the district of Indiana, under the act of congress to establish a uniform system of bankruptcy, then in force, and received his certificate of such discharge. Replication to the second plea — that the defendant, in filing the schedule of his creditors in the proceedings in bankruptcy in said plea mentioned, omitted to include the indebtedness in the declaration mentioned. There was a demurrer to this replication which was overruled. Upon overruling the demurrer, the Court, without noticing the first plea, gave final judgment for the plaintiff. Held, that this was erroneous. If the replication had been good, the general issue was still, while undisposed of, a bar to the plaintiff’s recovery. But we also think the replication was insufficient and that the demurrer should have been sustained.

The judgment is reversed with costs. Cause remanded, &c.