Kelly v. Masionis

82 A. 329, 79 N.J. Eq. 644, 1911 N.J. LEXIS 334

• Court: Supreme Court of New Jersey
• Decided: November 28, 1911
• Status: Published

Opinion

Per Curiam.

The bill in this case was filed bj^ Kelly, who was appointed trustee of the defendant by the United States district court in bankruptcy proceedings therein had, to have decreed as fraudulent and void against creditors a conveyance made by the defendant to Ms wife. The bill sets out, among other things, the bankruptcy proceeding, and it appears from1 the statements therein that the defendant was adjudicated a bankrupt, and was duly discharged in bankruptcy by the United States district court some months before the bill itself was filed. To the bill of complaint the defendant filed a plea reciting the bankruptcy proceedings, and averring that by virtue of the granting to the defendant at the close of those proceedings his discharge as a bankrupt, he was relieved from any and all obligations mentioned and set forth in the bill of complaint, and for this reason prayed to be dismissed with his costs and charges. The parties went to hearing on the bill and plea. The vice-chancellor, concluding that the plea was bad, advised an order overruling it, and from this order the appeal is taken.

The matters recited in the plea, and upon which the defendant relies as entitling him to be dismissed from the court, are all of them set forth in the bill of complaint. It is an essential requisite of a plea in chancery that it shall be founded upon new matter not apparent in the bill. If the facts upon which the defendant relies as entitling him to be dismissed from the court appear on the face of the bill, the proper mode of defence is by demurrer to the bill, and not by plea thereto. Story Eq. Pl. 660; Davis v. Davis, 57 N. J. Eq. (12 Dick.) 255.

The order appealed from will be affirmed.

For affirmance—The Chief-Justice, Swayze, Parker, Bergen, Voorhees, Kalisch, Bogert, Yredenburgh, Yroom, Cgngdon—10. For reversal—None.