Sherwood v. Johnson
New York Supreme Court
Demurrer to replication. The declaration is in debt on a judgment obtained against the testator, in the common pleas of Broome, in May, 1817. Plea, plena administravit, except as to 50 dollars, which the defendant says he retains in liis own hands, towards satisfying himself of a judgment recovered by him against the testator, in bis life time, to wit, in July, 1818, before a justice of the peace, on confession of the testator.
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Demurrer to replication. The declaration is in debt on a judgment obtained against the testator, in the common pleas of Broome, in May, 1817. Plea, plena administravit, except as to 50 dollars, which the defendant says he retains in liis own hands, towards satisfying himself of a judgment recovered by him against the testator, in bis life time, to wit, in July, 1818, before a justice of the peace, on confession of the testator. Replication, precludi non, because the plaintiff saith, that the said judgment in the said plea mentioned to ... .. -t .i. V, , have been recovered against the said N.…
1Opinion of the Court
By ilia Court,
Savage, CI>. J.
The replication is good, and according to approved precedent. (2 Chittty, 611, n. o.) It is sufficient to allege fraud and covin generally, without shewing such fraud specially. In Green v. Wilcocks, (Cro. Eliz. 462,) it was held that the plaintiff in his replication, must not only reply fraud and covin, but must traverse that the judgment was given for a just debt; but a different rule prevails now. (1 Lut. 662. 2 Sound. 50, n. 3.) The court there say, the plaintiff may traverse.the. special matter, or rely on the fraud generally ; and either way is good.
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