Ross v. Hamilton

By the Court, Morehouse, J. Tested by technical rules it is quite clear that the defendant’s plea of discharge as a bankrupt, before the justice, did not contain all that was necessary to make it good in form or substance. It was sufficient for the substantial purpose of apprizing the party of the real ground of defence; and it appears he was satisfied with its import, because he interposed no demurrer calling for greater accuracy or precision. Great latitude is allowed in proceedings before justices of the peace ; and courts construe them liberally. (Chamberlin v. Graves, 2 Hill, 504. Whitney v. Crim, 1 Id. 61. West v. Stanley, Id. 49. Fitch v. Miller, 13 Wend. 66. Young v. Rummel, 5 Hill, 60.) The office of an appeal is to try the cause upon its merits, and the common pleas are restricted to the issue or issues of law or fact framed in the court below and appearing upon the record. There was in this case a plea of the general issue to the plaintiff’s declaration and a plea of discharge under the bankrupt act. To this plea there was no formal replication; none was required by the defendant, by asking before the justice, judgment on the ground that it was not answered. He was content to consider the cause at issue, and is concluded by it. He introduced his discharge as proof of it, and on that decision for the first time the plaintiff attempts to raise an issue of law upon the defects and insufficiency of the defendant’s plea. No objection is made that preliminary or other proof was necessary, or that., when allowed by the court, it did not establish the defendant’s plea. I think it. was too late to take exceptions to the form of the plea. (Dean v. Gridley, 10 Wend. 254. Malone v. Clark, 2 Hill, 659. Wood v. Randall, 5 Id. 264. Jones [612] v. Thompstn, 6 Id. 621. Stephens v. Baird, 9 Cowen, 274.) The plaintiff here offered to prove a new promise, súbsequent to the discharge, which evidence was objected to, but admitted by the court. The new promise in such case is the basis of the action, but it is well established that the plaintiff may declare upon the original promise and insist on-the new one by way of replication. (Depuy v. Swart, 3 Wend. 141. Wait v. Morris, 6 Id. 394. Fitzgerald v. Alexander, 19 Id. 402. Shipley v. Henderson, 14 John. 178.) He did not réply a new promise; and it would be preposterous to assume that an issue was pending between the parties to determine whether a contract had been made between them founded upon equity and good conscience, to pay a note extinguished in law, and having no valid existence but as furnishing the consideration for such contract. This view of the case renders an examination of the proof, and the charge of the court, unnecessary. The judgment of the Steuben common pleas must be reversed, and a venire de novo awarded.