Marden v. Portsmouth Milling Co.

48 A. 282, 70 N.H. 269

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1900
• Status: Published

Opinion

Blodgett, C. J.

The particular grievance or wrong alleged and charged in the stating part or premises of the plaintiff’s bill is that the defendant Milling Company, well knowing Seward’s bankrupt condition, for the purpose of securing to themselves an unjust and unlawful preference, caused Mm, through over-persuasion, by threats and by duress, fraudulently and illegally to sign and deliver to said Milling Company, on the day named, the drafts or orders, which are set forth with proper legal certainty, and that the company have begun- and are prosecuting actions to enforce payment thereof. The substantive charge thus made, being manifestly that of obtaining an unjust and -unlawful preference, the particular facts constituting the means through which the preference is alleged to have been obtained, and which go to confirm or establish it, need not be minutely stated, inasmuch as they are more property matters of evidence (which need not be charged in order to let them in as proofs) than matters of allegation. -Sto. Eq. PL (9th ed.), 88. 28, 252, and authorities cited. The special demurrer was therefore property overruled.

In respect of the general demurrer, it is enough to say that while several distinct and well-recognized grounds of equity jurisdiction are presented by the bill, it may well be maintained under our practice as a reasonably necessary process and convenient procedure for speedily and economically establishing the plaintiff’s rights and furnishing their remedy. Tasker v. Lord, 64 N. H. 279, 283; Smith v. Bank, 69 N. H. 254, 257; Gregg v. Thurber, 69 N. H. 480, 483.

Exceptions overruled.

Young, J., did not sit: the others concurred.