Executors of Keese v. Fullerton — 2 Edm. Sel. Cas. 16

Majority

p. 16

ORANGE CIRCUIT.

October, 1848.

Before Edmonds, Justice.

Executors of Keese and Lawrence, Survivor of Keese, v. Fullerton and Armstrong.

Headnote

Amendment of complaint on the trial. What defect in pleading may he disregarded under section 151 of the Code.

This cause came on to be tried at the Orange Circuit, in October, 1848. The complaint stated that one A. B., being indebted in the sum of $300 to Lawrence and Keese, partners in business, and to others, and being insolvent, had made an assignment to the defendants in trust to pay, first, their expenses in executing the assignment; second, certain rents; and, third, the debt owing to the firm of L. & K.; and. averred that the defendants had received, under the assignment, a sum sufficient to pay that debt, whereby the defendants were indebted to the plaintiffs in the sum of $300, and interest. An answer was put in.

p. 17

McKissock, for defendants, objected—

1. That it did not appear from the complaint that the defendants had received under the assignment enough to pay the plaintiffs and the sums charged upon the assets prior to them claim.

2. That the defendants could not be indebted to the plaintiffs as averred in the complaint, but only to Lawrence, as survivor of Keese.

J. W. Brown, contra,

insisted that defendants could not take advantage of these defects on the trial; they ought to

have demurred. Besides, they could be disregarded, under the Code, as immaterial.

The last objection may be disregarded under section 151 of the Oode, because the averment complained of does not affect the substantial rights of the parties. But the other objection is more material, in this, that the complaint may all be true, and still the plaintiffs not be entitled to recover. To entitle them to recover they must aver and prove, not merely that the defendants received, under the assignment, enough to pay their debt, but enough to pay the prior claims for expenses and rent, and the plaintiffs’ debt. I will not, however, dismiss the complaint on that account; the plaintiffs may amend it, by inserting the necessary averments, on payment of the costs of this trial, the defendants to have twenty days to answer the amended complaint.