Whittemore v. Stephens

Graves, C. J. The plaintiff sued the defendant on his promissory note for $29,000 and defendant pleaded the general issue with notice of set-off. ' But at a later stage he put in a special plea puis darrein continuance and set up a composition made with the plaintiff and other creditors under section 17 of the amendment framed to the Bankrupt — 576 — Law by the Act of June 22,1874. By this proceeding the-defendant abandoned his former plea and placed the issue of the suit entirely on the new plea. The original defence was eliminated, and all resistance to the action was reduced' to the point newly set forth. Wheelock v. Rice 1 Doug. (Mich.) 267; Johnson v. Kibbee 36 Mich. 269. The special plea did not aver any performance or offer of performance of the composition nor allege anything by way of excuse. But instead thereof it averred that defendant applied to be discharged from this debt of the plaintiff and from the debts of other composition creditors and for a certificate of such discharge in virtue of said composition; that the plaintiff resisted the application on the ground that the defendant had not performed the composition, and the court, formulated an issue and had a hearing on the subject and thereon adjudged and determined that defendant had performed the composition and was entitled to the discharge sought, and in furtherance of this judgment or ruling then awarded to- defendant a certificate showing and declaring said adjudication and that said proceeding operated to release and discharge the defendant from the indebtedness sued for and from all liability on account .thereof. The plaintiff made no objection to this plea by demurrer or otherwise. lie filed a replication to it, which neither answered nor avoided the facts relied on as premises for the conclusion that the defendant was discharged, but merely traversed the alleged conclusion or effect of the adjudication and discharge, and concluded to the country. The defendant offered no objection whatever to this replication, and on these pleadings the parties went to trial before a jury who-found in substance that defendant did not perform the composition with the plaintiff, and on this finding judgment interlocutory was entered that defendant was not discharged, and for recovery by the plaintiff, and that the clerk assess the damages. Sotpe weeks later the clerk reported his assessment at $21,464.99 and judgment final was given on it. The incongruity of these proceedings is very striking. The issue 'tendered by the replication, was irrelevant, immaterial — 577 — and not triable by a jury, and the finding was a departure and wholly apart from any issue of fact offered by either side. If the plaintiff thought that actual performance of the composition or something equivalent was necessary in order to-found a defence on an accord in bankruptcy, and that the premises of the plea did not warrant the conclusion, her regular course was to demur to the plea which did not allege performance .or anything of that kind, but merely averred that the court in bankruptcy had undertaken to decide and had decided that performance had taken place. And on the other hand if it was the view of the defendant that the decision and award of certificate by the judge in bankruptcy, as the same are pleaded, were sufficient to defeat the action, he should have demurred to the replication which took no-notice of the facts and merely assumed to traverse the legaL inference. It was my first impression on reading these anomalous-proceedings that they authorized the award of a repleader, but further consideration has changed this opinion. The general doctrine of repleader need not be discussed. It is-enough to say that a repleader is never awarded in favor of the party who is the first offender in mispleading and to-whose misstep the later mispleading is traceable ; 1 Chitty Pl. (7th Eng. and 16th Am. ed.) 686 et seq.; Gould Pl. ch. 10;. and although the replication is wrong, the course of mispleading was begun by defendant. The plea can find no support in the law of pleading. No-precedent for it exists. It approaches nearer to a plea of estoppel than to any other. 2 Chit. Pl. 380, 381: Vooght v. Winch 2 B. & Ald. 662; Overton v. Harvey 9 C. B. 324; Steam Navigation Company v. Guillou 11 M. & W. 877. But it is not one. The ancient rules concerning pleas-of estoppel were extremely rigid; 1 Chit. Pl. 291, 292, 543; Com. Dig. Estoppel, E 4: E 6; King v. Lyme Regis, Doug. 149-159; and considerable strictness is still required. There must be no essential defect in the frame, and what is-alleged as matter of estoppel must be traversable and material. Com. Dig. Estoppel, E 6. If a judicial deter — 578 — mination is set up it must be well laid as estoppel and must have been coramjudice. id. E 1. This plea is not framed as a plea of estoppel. It neither begins nor concludes in the manner necessary for such a plea. It contains no claim that the plaintiff should not bo admitted to make use of what the supposed estoppel would exclude, nor any claim or averment of reliance on the decision of the district judge as an estoppel. 1 Chit. Pl. 585; 2 id. 381; Stephen’s Pl. (6th ed.) 322; Bac. Abr. Pleas, (I. 11). Yet these are essential parts of such a plea. Veale v. Warner 1 Williams’ Saunders, note 4, p. 325a. The next defect worthy of notice is that the act of the District Judge is not averred to be an estoppel. It is introduced as evidence and by way of argument, and as constituting a basis for deduction, and this is a grave fault. Com. Dig. Estoppel, E 4; Coke on Litt. 3525. The effect of all is that the issue tendered is matter of legal inference and not traversable. King v. Lyme Regis, supra. Leaving these objections, founded on the frame of the plea, I pass to the question whether the act of the District Judge as we find it stated could be deemed of sufficient force to be pleaded as estoppel. I have not succeeded in finding any provision for the issue of a certificate of discharge in such a case, nor any authority to adjudge the -debtor entitled to one, nor any authority to grant a specific order declaring his discharge. The law contemplates, apparently, that the debtor shall not exonerate himself except by actual performance of the composition or by something •equivalent, and I fail to discover any ground of inference that the judge is authorized to proceed by general declaration or in the form of adjudication and conclusively bind the creditor by certificate or finding of performance. The doctrine seems to bo that in case the debtor fails to comply with the composition in point of fact his liability on the debt again becomes active and cnforcible, and that the creditor may immediately sue him as though he had never concerted for a composition. The suit may be brought in any court in which it might have been brought if no bank — 579 — ■ruptcy proceedings had been commenced, and the question ■of performance is there subject to trial, and before a jury if a jury is demanded. National Mount Wollaston Bank v. Porter 122 Mass. 308; Pierce v. Gilkey 124 Mass. 300; Home National Bank v. Carpenter 129 Mass. 1; Newell v. Van Praagh L. R. 9 C. P. 96: 8 Eng. 415; Edwards v. Hancher 1 C. P. Div. 111: 16 Eng. 458, and cases. According to the view I have taken the defendant mispleaded. His plea offered no defence, and even the action of the District Judge was destitute of force to estop the plaintiff if counted on as required by the law of pleading. Still it was the defendant’s right to stake his resistance to the action entirely on this plea, as he did, and it was not ■ competent for the court to refuse the plea however objectionable in its frame and substance. Such appears to be the .rule in a case so situated. Paris v. Salkeld 2 Wils. 137; Lovell v. Eastaff 3 Term 554; Prince v. Nicholson 5 Taunt. 333. I do not regard the trial as of any importance, because there was nothing to try and the defendant lost nothing by the adverse verdict. The questions made on the trial are therefore immaterial. The plea was a virtual confession of the cause of action, and the interlocutory judgment, the assessment by the clerk and the award of final judgment were legitimate results in point of law of the shape of the contention, and they were in substance correct. The defendant is in no position to complain. The Statute of Amendments obviates all criticism on the practice in respect to the judgments and assessment. Comp. L. ch. 190. As the record is understood the applications to remove the cause were not in season, and no facts appear to show that the retention of the cause was error. It is not certain that the new plea did not operate to eliminate from the cause all condition of removability and effectually preclude the defendant from charging error on the prior refusal to ■transfer and on the neglect to notice the application made ■subsequently. But in view of the record as I read it, no -decision is necessary on this subject. — 580 — On the construction of the case to which I am led, n©error is shown of which the defendant is entitled to corniplain, and the judgment should be affirmed with costs. Campbell and Maeston, <TJ. concurred. Cooley, J. I do not concur in this opinion.