
    Merrit vs. C. P. L. Westendorf.
    3'pon an action for money had and received, against the defendant, it «as averred, that he received it as vendue-master, which allegation was not replied to, and verdict was had for the plaintiff, Meld, that the defendant was not thereby prevented at any time afterwards from taking the benefit of tlie insolvent debtor’s act; for as the question whether he received it as vendue master or not, was not put in issue, he might waive the question at that time, and he has the right to malte it whenever it becomes important to him.
    THIS was an application to the City Court by C. P. JIt. fVeslendorf, for the benefit of the act for the relief of insolvent debtors. The application was resisted on the ground, that the debt for which he was in custody, was for money received on goods sold by him in the capacity ©f a vendue master, in which case he was not entitled to the benefit of the act. That question was submitted to a jury, who found for the petitioner.
    A motion was now made to set aside that verdict, and for a new trial, on several grounds. But they may all be summed up in the general ground that the verdict was contrary to evidence. Another question however sprung up in the course of the argument, to-wit: That as the defendant was sued in the original action as vendue master, and failed to defend the suit, he had by his default admitted that allegation to be truc, and that it was now too late to contest the point.
   Mr. Justice Noll

delivered the opinion of the court:

The ease made in the court below, presented only a simple question of fact for the consideration of - the jury, and .the evidence was of that equivocal character as to furnish no ground for the interposition of this court. The ¿■then question is important, as it regards the future practice of the court. The vendue act subjects persons who •«re sued in that character fox' money, arising from goods •sold at auction to two disabilities — 1st. They are not entitled to the imparlance which is allowed in other cases.— And 2dly. They are denied the benefit of the insolvent debtor’s act. In the case of Misroon vs. Freen, (1 McCord’s Reports, 38,) it was decú’ed, that where a person who is sued as vendue master, would entitle kim.s.eijf to an imparlance, he must make it a preliminary question, by' denying the allegation that he had sold the goods in that character. And in the case of Rocheblanche vs. Cleary and Gieu, it was held, that the defendants had lost the benefit of that plea by pleading to the merits of the action. It was said however in that case, that it would be time, enough to decide the question, whether the party was entitled to the benefit of the act whenever it should arise t thereby intimating that the party had not lost the opportunity of trying the question by not pleading io the o.iginal action, if at any further period it should become necessary. And although it has befen urged that a defendant, by making default, admits every material allegation contained in the declaration, yet the act authorizes the court to regulate the practice in this description of cases in suck a manner as shall be best calculated to carry its provisions into execution. A person, although sued as vendue master, may not necessarily want the benefit of the insolvent debtor’s act, The allegation therefore may be perfectly immaterial at the time. It may become important by subsequent events, whenever the defendant thinks proper to make the question in. the first instance. ■ I think the decision ought to be conclusive, both for and against him, if he should ever after apply for the benefit of the act; but if he is willing to waive it, I can see no reason why he should not be permitted to make it whenever it becomes important to him. It appears to me to be a convenient practice. It is calculated to do justice to both the parties, and to avoid unnecessary litigation. I am of opinion therefore that the petitioner was entitled to be heard. anc having obtained the verdict of a jury in his behalf, he was entitled to his discharge.

Gadsden, for the motion.-

JDun/ein, contra.

The motion therefore is i jfnsecl.

Justices Colcock, Johnson and Huger, concurred.  