Alexander v. Miller — 10 Wend. 603

Majority

p. 603

Alexander vs. Miller.

Headnote

A replication that the discharge of the defendant as an insolvent debtor was •obtained by fraud, accompanied with notice of the facts which will be insisted upon at the trial is not a special pleading, requiring the signature of counsel.

The defendant pleaded his discharge as an insolvent debt- or, to which the plaintiff put in a general replication that the discharge was obtained by fraud, and accompanied the replication with a notice of the facts which he would insist upon in support thereof. The replication not being signed by counsel, the ^defendant’s attorney disregarded it, and entered the plaintiff’s default as for want of a replication, which was now moved to be set aside.

By the Court,

A replication with notice, as put in by the plaintiff is conformable to the statute, 2 R. S. 355, ■§ 26, and is not a special pleading, within the rule or the reason of it, requiring the signature of counsel. 2 Caines, 60. 8 Johns. R. 328. Graham’s Pr. 210, and cases there died. The motion is granted.