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The defendant answers to the complaint, and alleges:

I. That there is no record remaining in said court of such recovery as the plaintiff has alleged.

II. That the said A. B. has goods and chattels, lands, and tenements, liable to execution for the satisfaction of money due on the said judgment.

III. That the said A. B. has no goods or chattels or effects of the said plaintiff in his hands.

§ 3841. Denial of assignment. An allegation in the complaint that the assignment was made with the intent to hinder, delay, and defraud creditors is sufficiently put in issue by a denial that the assignment was made with intent to hinder and defraud creditors.1

§ 3842. Denial that conveyance was fraudulent.

Form No. 924.

That upon the making of the alleged assignment [or mortgage] there was an actual and continued change of the possession of the assigned [or mortgaged] property, from the said [debtor] to the [transferees], who immediately after the execution of the assignment [or mortgage], took actual and exclusive possession of the property; and that it has at all times since the assignment [or mortgage] remained in their exclusive protection and control.2

1 Read v. Worthington, 9 Bosw. 617.

2 See Churchill v. Bennett, 8 How. Pr. 309.

§ 3843. Denial of possession of assets.

Form No. 925.

That he had not, at the commencement of this action, nor has he had at any time since, property of the defendant [debtor] in his possession or under his control, as alleged, or at all, or in any manner.

§ 3844. Denial of execution.

Form No. 926.

That no execution upon the said judgment was ever returned unsatisfied in whole or in part [or was ever issued to the said .] before this action.

§ 3845. Denial of judgment.

Form No. 927.

That there is no record of the said judgment.3

§ 3846. Defendant has assets.

Form No. 928.

That the defendant [judgment debtor] has, and at the commencement of this action had, real property [or personal property, or both] in the county of in this state, liable to execution, and sufficient in value to satisfy said judgment, to-wit [designating what].

§ 3847. Relief by motion. A complaint in an action to set aside a judgment, which contains no averment showing that relief could not have been obtained on motion, may be demurrable, but if defendant fails to demur, and answers on the merits, and the facts supplying the defect appear in the record, the objection is waived.*

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The defendant answers to the complaint, and alleges:

I. That the plaintiff ought not to have his action aforesaid; because he avers that the said defendant did, on the ...

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dollars, he, the said

the

said lands and tenements bona fide, for the consideration of

being then

seised in fee, and in possession thereof [here state how and

3 Chit. Forms, 108.

4 Bibend v. Kreutz, 20 Cal. 109.

when paid, and if notes were given, aver the giving of them], and without any fraud or intent to hinder or delay or defraud the said or the other creditors of the said and without any knowledge, information, or belief, at that time or previous thereto, that the said .... sold the said premises with the intent charged in the said complaint.

§ 3849. Conditional sale. Where, on sale of personal property, the right to receive payment before delivery is waived by the seller, and immediate possession is given to the purchaser, and yet, by express agreement, the title is to remain in the seller until the payment of the price upon a fixed day, such payment is strictly a condition precedent, and, until performance, the right of property is not vested in the purchaser.5 A second vendee is not entitled to stand in any better situation than his vendor, in regard to the title of personal property, other than negotiable instruments, and whatever comes under the general naming of currency. Whether a further exception to the rule exists in favor of bona fide purchases from the purchaser at a conditional sale is not decided.

§ 3850. Essential averments denial of notice. The strict rule applied in chancery required that a party claiming as a bona fide purchaser, without notice, must deny notice positively, and not evasively though it were not charged in the bill and every fact from which notice might be inferred. Thus where a party desires in his plea or answer to claim that he was a bona fide purchaser for a valuable consideration, he should state the deed of purchase, with the date, parties, and contents, briefly; that the vendor was seised in fee, and in possession; the consideration, with the distinct averment that it was bona fide and truly paid, independently of the recital in the deed; and how the grantor acquired title. Notice should be denied pre5 Putnam v. Lamphier, 36 Cal. 151.

6 Id.; see Johnson v. Kirby, 65 Cal. 482, 486.

7 Frost v. Beekman, 1 Johns. Ch. 288; Denning v. Smith, 3 id. 332; Gallatían v. Cunningham, 8 Cow. 361; Wyckoff v. Sniffen, 2 Edw. 581. Denial of notice to agent. Griffith v. Griffith, 9 Paige Ch. 315; S. C., Hoffm. Ch. 153. A plea of bona fide purchaser, for value and without notice, must be as full under the Code as under the former system of equity pleading. The party setting up the plea has the burden of proof on that issue. Weber v. Rothchild, 15 Oreg. 385.

vious to and down to the time of paying the money, and the delivery of the deed.8 In a plea of purchase for a valuable consideration, without notice of the plaintiff's title, it is necessary to aver that the person who conveyed was seised, or pretended to be seised, at the time when he executed the purchase deeds." A plea denying notice "of the facts and circumstances charged was evasive and insufficient, but was cured by a subsequent averment that the defendant was without notice "of the matters alleged, or any of them."10 The defendant must aver and

prove, not only that he had no notice before his purchase, but that he had actually paid the purchase money before such notice.11 And it was also essential to state to whom the consideration was paid on the purchase.12 And it should be averred that the defendant's grantor was in the actual possession, or at least that the one under whom his grantor claimed was so.13.

CHAPTER II.

DISSOLUTION OF PARTNERSHIP.

§ 3851. That the term is not expired.

[TITLE.]

Form No. 930.

The defendant answers to the complaint:

That the partnership between him and the plaintiff, set forth in the complaint, was not upon the terms and according to the stipulations, agreements, or covenants alleged by plaintiff in his said complaint; but, on the contrary, that said partnership was formed, and entered into, and carried on, under and in pursuance of a written agreement and articles of copartnership between him and said plaintiff, a copy of which is hereto annexed, and forms a part of this answer, showing that the time for the continuance of said copartnership is not yet expired, which agreement has never been altered or varied in writing or by parol; and that the copartnership formed and

8 Boone v. Chiles, 10 Pet. 193.

9 Story v. Ld. Windsor, 2 Atk. 630; Flagg v. Mann, 2 Sumn. 486, 557; and see Weber v. Rothchild, 15 Oreg. 385.

10 Tompkins v. Anthon, 4 Sandf. Ch. 97.

11 Jewett v. Palmer, 7 Johns. Ch. 65; 11 Am. Dec. 401.

12 Tompkins v. Ward, 4 Sandf. Ch. 594.

13 Tompkins v. Anthon, 4 Sandf. Ch. 97.

carried on in pursuance thereof is the same set forth and alleged in said complaint.1

§ 3852. Construction of articles. In an action between partners for an accounting, the complaint alleged, and the articles of agreement which were set forth in the complaint stated, that the plaintiff contributed two thousand two hundred and fifty dollars to the capital of the firm, which sum, the complaint alleged, the defendant had converted to his own use. The answer denied that the two thousand two hundred and fifty dollars was contributed as capital; and averred that it was to be paid by the plaintiff for an equal interest in the business; that the money was paid on that basis; and that both parties have acted upon the understanding that such was the meaning of the articles: it was held sufficient to present the issue, whether the articles were by mistake so drawn as not to express the actual agreement of both parties.2

§ 3853. Overdrawing done by plaintiff's assent.

[TITLE.]

Form No. 931.

The defendant answers to the complaint:

That he denies each and every allegation set forth in the [third separate cause of action in] said complaint, relative to the alleged misconduct of defendant, and his alleged acts and doings in the management of the said partnership business, except the allegation of his drawing out from the funds of said copartnership more than his portion of the profits thereof, towit, the sum of ... dollars, and investing the same in, etc.; and as to such allegation, defendant alleges and states that it was done with the full knowledge of said plaintiff, and with his approbation and express assent.

§ 3854. Judgment, when a bar. Judgment for winding up affairs of corporation is no bar to a suit to enforce individual responsibility of shareholder.3. Suit for injunction to restrain debtor from making assignment in violation of agreement does not preclude action upon debt itself.*

1 This form is from 2 Van Santv. Eq. Pr. 579.

2 Isles v. Tucker, 5 Duer, 393.

3 Diven v. Duncan, 41 Barb. 520.

4 Paige v. Wilson, 8 Bosw. 294.

Vol. II - 109

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