McGowan v. Bowman

Haselton, J. This was general assumpsit brought by the plaintiff against the defendant to recover the claimed amount of a grocery bill. The case was brought before a justice of the peace of the city of Barre. At the trial before the justice the defendant’s counsel stated that the defendant was in bankrupty and moved for a continuance. This statement of counsel could not, however, legally operate as a stay-of proceedings. The case went on and upon April 20, 1901, judgment was rendered for the plaintiff for $41.21 damages, and $7.00 costs. The defendant appealed to the Washington County Court. At the September Term, 1904, of that court trial was had by the court and judgment was rendered for the defendant to recover his costs. The pleadings as finally300 made up consisted of the declaration, a plea of discharge in bankruptcy, a replication, a rejoinder in which the defendant prayed judgment and for his costs; and a surrejoinder in which the plaintiff prayed an inquiry by the country. At one time the pleadings were different, but the earlier pleadings subsequent to the declaration had all been withdrawn, and on trial there was no general issue in the case, nor any pleadings other than those above designated. The issues made by these pleadings were: i. Was the defendant insolvent at the time of the commencement of the suit by trustee process ? and, 2, would the existence and enforcement of the plaintiff’s lien acquired by the service of the trustee process work a preference? Some evidence, not relating to the issues which the pleaders had chosen to make, but not prejudicial, was received under general objections and exceptions. These need not be considered. The evidence relevant to the issues in the case was not excepted to, and on these issues the court, in effect, found against the plaintiff, and judgment for the defendant to recover his costs was properly rendered. The plaintiff in argument raises various questions which under the pleadings need not be considered. Judgment áiñrmed.