Roberts v. Kelly — 2 N.Y. Super. Ct. 307

Majority

p. 307

Elizabeth Roberts versus John C. Kelly.

Headnote

The plaintiff declared on a promissory note, bearing date the 20th of June, 1816) and also for goods sold, money paid, &c. The defendant pleaded a discharge under the 9th section of the act “ giving relief in cases of insolvency,” passed April 12th, 1813. The plaintiff replied, admitting the discharge, but averring that the consideration of the note arose out of the state of New-York, before the passing of the act, and that the plaintiff then resided out of the state, to wit, at Philadelphia. The same matters were also set forth relative" to the goods, money, &c¿, specified in the second count of the declaration. The defendant rejoined, stating that “ at the time when,” &c., he was an infant, residing in the state of New-York, and so continued until after the passing of the act; and that he resided in said state until after he arrived at the age of 21 years.

Upon demurrer to the rejoinder, it was held to be a departure from the plea, and, consequently, bad. That the replication was bad, also, for duplicity; but as that defect could not be noticed, except upon a special demurrer, the plaintiff had judgment on the issue.

The declaration in this case, contained a count upon a promissory note for 160 dollars and 75 cents, dated “ New-York, June “ 20th, 1816,” by which the defendant promised to pay that sum to the plaintiff, or the person she might, appoint to receive the same, “ for value received by him, October 29th, 1812, with in- terest from that time.” To this there were added, counts for goods sold and delivered, work and labor, money lent and advanced, had and received, &c.

The defendant pleaded, first, the general issue. 2. The statute of limitations. 3. A discharge, on the 10th day of December, 1816, under the 9th section of the act, “ giving relief in cases of “ insolvency,” passed the 12th of April, 1813.

The plaintiff, upon the second plea, tendered an issue to the country, and to the third plea replied, admitting the discharge, but averring that the promissory note was made and delivered to her in consideration of the sum of $160.75, paid, laid out, and expended by the plaintiff for the defendant, “ out of the territory, limits, and “ jurisdiction of the state of New-York, and before the passing of the “ said act,” to wit, “ on the 29th day of October, 1812, at Phila- “ delphia,” in the state of Pennsylvania, the plaintiff, at that time,

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“ actually residing” there. The same matters were also alleged relative to the goods, money, work, labor, &c. mentioned in the second count, and the plaintiff prayed judgment, &c. “ to be le- “ vied, not on the person of the defendant, but on his lands, goods, “ and chattels, &c.” With regard to the third plea, so far as it related to the promises and undertakings mentioned in the last count of the declaration, (which was upon an insinml computassent,) the replication concluded by stating, that the plaintiff would not, as to them, “ further prosecute her suit against the defen- “ dant.”

The defendant joined issue upon the replication to the second plea, and to the replication to the third, he rejoined, averring that, at the time when the consideration for the said promissory note was advanced, and when the goods, money, &c. mentioned in the second count were furnished, to wit, on the 29th day of October, 1812, he was an infant, of the age of 17 years, and so continued to be, until after the passing of the said act, “ giving relief in cases of “ insolvency,” “ the said defendant before, and at the time of, and after he obtained the age of 21 years, hitherto actually re- “ siding within the territory, limits, and jurisdiction of the state of “ New-York, to wit, at the city of New-Yorlt aforesaidconcluding with a verification.

To this rejoinder the plaintiffs demurred, and for cause set forth, first, that the rejoinder was a departure from the third plea in this: that said plea sets up, as a defence to the action, a discharge after the making of the promises; whereas, the rejoinder sets forth that the defendant was an infant at the time of making the promises. 2. That the rejoinder was a departure in this also; that it set up matters in answer to the replication, which might have been pleaded as a defence to the declaration. 3. That the rejoinder was double and confused, in stating that the defendant was an infant on the 29th day of October, 1812, and so continued to be until after the passing of the act, &c. 4. That the rejoinder was argumentative, by seeking to raise an inference, that the defendant could not, after he became of age, ratify the acts done by him while an infant, &c.

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The defendant having joined in the demurrer, the cause was argued by Mr. E. Paine for the plaintiff, and by Mr. R. S. Church for the defendant.

Mr. Paine contended,

I. That the rejoinder, if bad in part, was bad for the whole. [1 Chit. P. 643.] It sets up infancy either as a distinct substantive bar, or it sets it up to aid and support the plea of discharge. In either way it is a departure,—in the first, clearly so,—in the second, because there is no material and obvious connexion between the two defences, and because the attempt made to show a connexion, has failed entirely; or, in other words, as the defences stand upon the record, that of infancy does not support that of the discharge.

II. The rejoinder is double and confused, in stating facts which have no obvious and natural relation, in such a way, that no relation between them is apparent upon the face of the pleading; that is, the facts, as they stand upon record, do not appear relevant to any one purpose.

III. The rejoinder is argumentative. Every pleading is a statement of facts, as premises, from which the law is to draw a conclusion. But the premises themselves must be stated. It is not sufficient to state facts from which the premises may be drawn by the court by way of inference. If facts are stated, from which the conclusion of law cannot be drawn, without interposing a fact by way of inference, the consequence is, that the pleader, who is to reply, may mistake as to the fact to be inferred, and he is obliged to take issue upon several facts from which the inference is to be drawn. The only material facts sought by this rejoinder to,be put in issue, are, that when the defendant made the original promise, he was an infant, and that he never ratified it, except in this state, under and with reference to the insolvent law. The, last fact is a matter of inference, and by no means a clear one. [See the observations of Spencer J. in Tracy v. Dakin, 7 John. Rep. 79 .]

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IV. The rejoinder is bad in substance.

1st. The promises alleged, if made by the defendant when an infant, are voidable only, and it is incumbent on him to show a disaffirmance,—not on the plaintiff to show a ratification. [2 Kent’s Com. 194, and cases there cited.]

2d. These facts are to be considered subject to the chain of pleading under which they arise. By first pleading his discharge, the defendant admits that the promises alleged in the declaration were neither void nor voidable, but binding upon him. By pleading his discharge in this state, the defendant made it necessary for the plaintiff to new assign his promises, and place upon record the time and place where they were actually made. But as these promises were sufficiently specified in the declaration, to charge the defendant with a knowledge of the actual promises, he cannot say that, until replication, he did not know that the promises there newly assigned were the promises alleged in the declaration. He, therefore, by his plea, admits the promises to be good, and cannot gainsay this admission in his rejoinder. If the defendant had wished, to use his infancy as a bar, he should have pleaded it, and then if the plaintiff had replied a ratification, the defendant might have rejoined a discharge, (if he can plead it at all in such a case,) from the ratification. In that way the question would have been properly presented to the court, and in due order.

The rejoinder, so far as the common counts are concerned, is just as good to the declaration as to the replication, and if the replication were withdrawn, would apply exactly in its terms to the allegations of the declaration. This shows that it was not the replication alone which called for it.

3d. The rejoinder admits the contract, to'have been made, out of the state, &c., but seeks to subject it to the operation of the insolvent law, by saying that the defendant was an infant when he made it, and that he ratified it subject to the law, &c. Now if this were all true, and if a ratification were necessary, and the original contract was not subject to the operation of the law, the ratification would not make it so. The ratification is not the contract. It is the contract which is sued upon, and not the ratification.

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The contract has a consideration, terms, two parties, both consenting, and both to be bound. The ratification is the mere subsequent assent of one party, and nothing more. The other may not be present, nor know any thing of it. If a judgment is recovered on a note given here for a contract made out of the state, our courts pass by the note or judgment, and look at the contract, and that only, to see whether it is subject to our insolvent law. If, then, where the promisee chooses to take a judgment or note, within this state for his old demand, it is held not to subject it to the insolvent law, much less ought a mere ratification to have that effect, which is, perhaps, merely exporte and unknown to the promisee. Whether the defendant was an infant, or of age, when he made the original promise, is not material. In either case, if he gives a new note for it, in this state, the intention is the same, viz. to put a note in the place of the original contract, and nothing more.

4th. The rejoinder is supposed not to set up infancy as a new and substantive defence, but to introduce the infancy in support of the discharge. It seeks to show that the contract required ratification, and that the ratification comes within the insolvent law. Now all that the rejoinder states to show that the contract required ratification is, that it was made by the defendant while an infant. But this does not show that a ratification was necessary. All contracts, made by infants, do not require ratification—for necessaries, for example. Here, then, is a fatal omission. It is no answer to say, that the defendant having rejoined his infancy, it is incumbent on the plaintiff to show that the contract was for necessaries.

5th. The language'of the rejoinder is such, that it does not succeed in excluding, as it intends to do, the possibility of a ratification after the defendant was of age, out of the state. It does not aver that the defendant always' resided in this state after he was twenty-one,'—non constat, that he did not ratify the contract out of the state, after he was of age.

V. The rejoinder is also bad in substance, because it was incumbent on the defendant to allege, that by the laws of Pennsylvania, infancy affected the contract. In Thompson v. Ketcham, [8

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John. R. 193-4,] the court say, “if the defendant had specially “ pleaded infancy, he ought to have accompanied it with an aver- “ ment, that, by the law of Jamaica, he was an infant, and the con- “ tract not binding upon him.”

VI. The rejoinder being bad as to the common counts, (if not as to the count upon the note,) is bad for the whole.

Mr. Church, for the defendant, contra, contended,

I. That if the pleading demurred to was defective, still that the plaintiff was guilty of the first fault in pleading.

The plaintiff, by the replication, admits the discharge as pleaded by the defendant. After this admission, she cannot be permitted to say it is only operative with half its force; that is, only as to the defendant’s body.

The discharge is pleaded as a whole, and not by halves, and must be treated either as good or bad; having admitted it to be good by her replication, the plaintiff cannot deny its force and effect.

The plaintiff having declared expressly upon a note, stating the consideration to have arisen in Pennsylvania, prior to the passage of the insolvent act of 1813, and the defendant having pleaded his discharge thereto, if the plaintiff wished to contest the effect, force, and validity of that discharge, she ought to have put it in issue.

The replication does not present such an answer to the plea of discharge, as that a proper issue can be taken on it; or at all events, an issue more proper than the one tendered by the defendant, by his rejoinder.

The insolvent act of 1813, was never intended to discharge any but legal liabilities, and it will be seen from the pleadings down to the demurrer, that there never was any legal liability of the defendant to the plaintiff, until after the passage of that act, in reference to which, that liability must be construed to have been incurred by the defendant; for, by the demurrer, the facts in the pleading are admitted to be true.

If the replication is bad in part, it is bad for the whole.

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Does the replication, as to the plea of the discharge, amount to any thing more than a repetition of the declaration, so far as it goes beyond the admission of the discharge i It merely alleges the original consideration to have arisen in the state of Pennsylvania, which is also alleged in the declaration, and put in issue, by the defendant’s plea. The plaintiff, in order to defeat the plea of discharge, which she admits, repeats the allegation of a foreign consideration, alleged in her declaration, and would ask the court to infer and apply the law for her. The defendant meets the allegation, and pleads facts, that show the discharge to be valid, even allowing the plaintiff’s allegation to be true, and asks the court to interfere in behalf of the truths of the case, and apply the law to the fact. If it was competent for the plaintiff to reply a foreign consideration, it was equally competent for the defendant to rejoin facts, to show that that consideration did not raise a legal liability on him, excepting under the laws of this state.

Whether by the laws of Pennsylvania, the contract would be binding upon an infant or not, as in this case, it was not material for the defendant to aver, as the action was personal and transitory, and being an infant, and an inhabitant of this state, before and after his legal liability arose, he is entitled to the protection of our laws.

Mr. Paine, in reply.

I. The defendant’s counsel is mistaken as to a fact, which he repeats several times in his argument, viz., that the consideration of the note declared on, is described in the declaration as having arisen in Pennsylvania. It does not appear, either from the note or declaration, where the consideration arose.

' II. The rule that the court will give judgment against the first defective pleading, applies only to defects in substance. Now all the defects to which the defendant’s counsel objects in the plaintiff’s replication, if they could be considered as defects, are defects of form.

It is unnecessary to cite those cases, in which, the Supreme Court of the United States held insolvent discharges to be void, so

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far only, as they attempt to discharge the property. In Mather v. Bush, [ 16 Johns. 233 ,] the Supreme Court of New-York established the law, that such discharges are valid, when applied to contracts made by the parties, with reference to the insolvent law. It, therefore, became necessary for the plaintiff to aver facts, which show that the contract was not made with reference to the law, viz.: that the contract was made out of the state, or before the passage of the law, or both. If the declaration does not contain such an averment, (as it need not, and,'as in this case, it' does not,) then it must be averred in the replication. Such were the pleadings sanctioned by the court, in Wyman v. Mitchell, 1 Cowen's R. 316, and Raymond v. Merchant, 3 Ib. 147.

The Court gave judgment for the plaintiff on the demurrer, upon the ground that the rejoinder was a departure from the plea. They held also, that the replication was defective for duplicity, but that this defect, being one of form merely, could not be noticed except upon a special" demurrer,—as the rule, that the court will give judgment against the first defect in pleading, applies to defects is substance only.

[E. Paine, Att’y for the plff. R. S. Church, Att’y for the deft.]

Cases cited

Mather & Strong v. Bush 16 Johns. 233 N.Y. Sup. Ct. p. 314