Kellogg v. Kimball
Massachusetts Supreme Judicial Court
Contbact for money had and received, with a count in tort for false and fraudulent representations. After a verdict for the plaintiff, the defendant filed a plea puis darrein continuance, setting up his discharge in bankruptcy.
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Contbact for money had and received, with a count in tort for false and fraudulent representations. After a verdict for the plaintiff, the defendant filed a plea puis darrein continuance, setting up his discharge in bankruptcy. After the former decision, 135 Mass. 125, the plaintiff filed a replication to this plea, alleging that the debt of the defendant, “ as alleged in said declaration,” was created by the fraud of the defendant, and is not barred by the discharge in bankruptcy; and, upon the issue of fact so raised, claimed a trial by jury. The defendant demurred to the replication, on…
1Opinion of the CourtMorton, C. J.
The Superior Court was not required to set aside the verdict in this case. It would be unjust to do so, and thus compel the plaintiff to re-try the case upon the merits. The defendant filed a plea puis darrein continuance, setting up his discharge in bankruptcy, to which the plaintiff replied, that the debt set out in the declaration was created by the fraud of the defendant, and is not barred by the discharge in bankruptcy. The only issue tendered and raised is whether the debt due the plaintiff was created by the fraud of the defendant, and the usual and proper course, under our practice,…
2Cases cited3 opinions
- Cronan v. CottingMassachusetts Supreme Judicial Court · 1870
- Burpee v. SparhawkMassachusetts Supreme Judicial Court · 1871
- Kellogg v. KimballMassachusetts Supreme Judicial Court · 1883
3Cited by1 opinion
- Kellogg v. KimballMassachusetts Supreme Judicial Court · 1886