Hill v. Russell

Headnote

Where plaintiff swears to the truth and materiality of several matters sought to be replied double, he will be allowed thus to reply, although such replication might be considered bad on demurrer.

Motion by plaintiffs for leave to reply double to the defendant’s special plea of bankrupt’s discharge.

First, a promise made by the defendant to the plaintiffs, to pay the debt or demands for the recovery of which this suit was brought, subsequent to the time the defendant’s bankrupt’s

discharge was granted. Second, that the debt or demands or some part thereof, for the recovery of which this suit was brought, was created while the defendant was acting in a fiduciary capacity, and that the debt or demands were not mentioned in any of the defendant’s papers in his proceedings in bankruptcy, and the plaintiffs were not named therein as creditors of defendant; that the plaintiffs were not served with any notice of defendant’s proceedings in bankruptcy, or with any notice of the defendant’s petition or application for his discharge as a bankrupt, .although the defendant well knew the placó of residence of the plaintiffs. Plaintiffs’ affidavits stated the above matters as facts, and alleged their materiality by way of replication.

Defendant’s counsel objected: 1st, that plaintiffs must show the necessity of applying to this court for such leave.. 2d, there was no consideration *of the subsequent promise, and if defendant was not discharged as to tire claim of plaintiffs, it was all they required to show.