Kellogg v. Kimball
Massachusetts Supreme Judicial Court
Contract for money had and received, with a count in tort. After the decision of this court overruling the defendant’s exceptions, 122 Mass. 163, the case came on to be heard in the Superior Court, before Staples, J., on the plaintiff’s motion for judgment on the verdict. The judge denied the motion; and the plaintiff alleged exceptions, which appear in the opinion.
1Opinion of the CourtMorton, C. J.
After the verdict in this case, the defendant obtained his discharge in bankruptcy, and duly pleaded it in bar of judgment in the action. The proper course for the plaintiff was to file a replication to this plea, setting up that his debt was created by fraud of the bankrupt. Upon such replication the defendant has the right of trial by jury. Instead of doing this, the plaintiff filed a motion for judgment, notwithstanding the plea.
The court could not properly entertain this motion, or receive any evidence under it. Whether, if the record showed conclusively that the debt was created by fraud…
2Cited by3 opinions
- Kellogg v. KimballMassachusetts Supreme Judicial Court · 1886
- Thibodeau v. MartinSupreme Judicial Court of Maine · 1944
- Kellogg v. KimballMassachusetts Supreme Judicial Court · 1885