Peck v. Burgess

1 Walk. Ch. 485

• Court: Michigan Court of Chancery
• Decided: September 15, 1844
• Status: Published

Opinion

The Chancellor.

Defendant pleaded his discharge under the bankrupt law, in bar of complainant’s bill. Thereupon complainant amended his bill, and served a copy of his amendments on defendants’ solicitor, and defendant put in an answer to the amendments. Complainant now moves to have the plea taken from the files; and rests his motion on the fact the plea is not sworn to. By amending his bill, as he had a right to do, under the 32d rule, he admitted the validity of the plea; and the amended bill standing in the place of a new bill, the plea was no answer to it. The plea was superseded by the new or amended bill, to which the defendant had the same time to plead, answer, or demur, that he had to the original bill. Instead of putting in an answer to the amendments only, which would have been the proper course if defendant had filed an answer to the first bill, he should have demurred, or put in a plea or answer to the amended bill, the same as if no plea had been filed by him. The motion should have been to take the answer to the amendments from the files, for irregularity, and not the plea.

Motion denied.