The questions in this case arise upon a demurrer to the plaintiff’s replication to the defendant’s plea.
' The only question raised upon the replication is whether the judgment rendered in the suit in favor of Boutwell against William F. McClure in which the defendant here was cited in as trustee, and this plaintiff as claimant, is conclusive as to the plaintiff’s right to recover the amount of the note then in controversy, of this defendant.
This question must be determined by the construction of our statute regulating the proceedings by trustee process, and the legal effect by such proceedings as may be had under it.
If in the course of the proceedings under this statute it shall appear that any goods, effects, or credits, that may be in the hands of the supposed trustee, are claimed by any other person, such claimant *132may come in voluntarily, or may be cited in, and admitted, as a party to tbe suit, so far as it respects his title to the goods, effects, or credits, in question. When a claimant is thus admitted he becomes a party to the suit to a limited extent, that is so far only as regards his title to the property in dispute.
When the claimant thus becomes a party he files his allegations, setting forth his claim to the property, and an issue is formed thereon between him and the plaintiff; and that issue is, whether the property in the hands of the trustee is the property of the claimant, or the principal debtor. To that issue the trustee is no party. He takes no part in forming it, or in the trial that is had upon it, unless as a witness. He has no legal interest in it, and his rights are in no respect affected by it. If he has funds in his hands for which he is liable to either, it is a matter of indifference to him to which he pays it. Whether he has funds or not, or to what amount, is not then in issue. If upon the trial of that issue it shall be adjudged that the principal debtor has the better right to the funds in the trustee’s hands, then if there shall be found therein sufficient to bring him within the statute, judgment is rendered against him as trustee, for the amount, or for the amount of the plaintiff’s demand ; and such judgment will be conclusive to protect the trustee in the payment of that sum, and if he pays it, such payment will be a good defence against any claim that may be made on him therefor, either by the principal debtor, or the claimant. And it is for the very purpose of protecting the trustee, in case judgment is rendered against him, that the claimant is made a party, and not for the purpose of determining whether the trustee has funds or not, or to what extent, but to determine to whom he is liable if at all.
But if it shall be adjudged that the claimant has the better right, then a judgment is rendered that the trustee be discharged. Now what is settled by that judgment? Simply that as between the claimant and the principal debtor the claimant has the right to the funds in the trustee’s hands if any ; but no judgment has been rendered fixing the amount in the trustee’s hands, or that there is any amount in his hands. No judgment has been rendered that at all bears upon those questions on either side. The claimant is left to pursue his remedy against the trustee the same as though no trus*133tee suit had ever been brought, and the trustee has the same right to defend. Perhaps he could not set up by way of defence that the principal debtor was the owner of the property in his hands, but so far as the question of liability is concerned the whole matter is left open.
We think the county court was correct in holding that the plaintiff’s replication is insufficient.
But it is said, that, conceding the replication to be insufficient, the defendant’s pleas are bad, and present no legal answer to the declaration.
The defendant alleges in his pleas that the contract in pursuance of which he executed the note declared upon, was entered into between himself, William F. McClure, and the plaintiff, as a mere cover, with the view of defrauding the creditors of the said William F. by putting the property of the said William F. for which the note was given, beyond their reach by attachment, and that the whole was done for the purpose of securing the property or the avails of it to the said William F., and that it was also agreed between the said parties, that the defendant should dispose of the said property and pay the avails thereof over to the said William F., and that his doing so should operate as a payment and discharge of said note and of all the defendant’s liability to the plaintiff thereon. And the defendant alleges that before the commencement of this suit he did dispose of said property and pay the avails thereof to the said William F. according to the terms of said agreement.
Without stopping here to discuss the question, as to the effect of the alleged fraudulent character of the transaction, upon its validity, as between themselves, it is very clear that if the defendant has performed the agreement on his part and done that which by the terms of the agreement was to operate to discharge his liability upon the note, that would constitute a defence to the plaintiff’s action. And the effect must be the same whether the agreement be regarded as valid and binding between the parties, or as void by reason of the fraud.
Again it is urged that as the plea states that the agreement was made at the same time the note wa3 executed as a part of the same *134transaction, and as the agreement alters, and varies, the terms of the note, the plea should have alleged that the agreement was in writing, and for want of such allegation is bad.
The contract as set forth in the plea is not one of that class that the law requires to be reduced to writing. A verbal contract of this character, when proved, is just as valid and binding as it would be if it was in writing ; consequently in setting out such a contract in a declaration, or plea, it is not necessary to allege that it is in writing. Whether the contract set out in this plea was reduced to writing or not is a matter that cannot be determined by the plea itself; that can be determined only upon the trial of an issue formed upon it. If the pleader attempts to prove the contract by farol evidence it would be excluded upon the objection of his opponent. The rule however that farol evidence cannot be received to vary or contradict a written contract, is a rule of evidence, and may be waived. If the party having the right to object to such evidence omits to do it, and the evidence is admitted and the alleged facts are thereby established, he cannot then avoid their effect, by claiming that the testimony should have been in writing. So too if instead of taking issue upon the plea, he admits the truth of the allegations by a demurrer, thereby rendering all evidence unnecessary, he cannot then avoid the effect of the admitted facts, on the ground that if he had denied them, they could not have been proved by legitimate testimony.
It is further urged that the plea is bad for duplicity inasmuch as it alleges fraud in the contract, in pursuance of which the note was executed, that avoids the note, and also a performance of that contract on the part of the defendant that in effect discharges his liability upon the note.
Whether the plea is double or not is a question that it is not necessary now to settle, for if it is obnoxious to that objection, it is quite clear that in the present state of the pleadings the plaintiff cannot avail himself of it.
The rule that extends the effect of a demurrer back over .the prior pleadings, limits its operation to defects in substance, such as are reached by a general demurrer. Duplicity does not consist in a deficiency in substance, but' rather in an excess, the pleader alleging *135two grounds of claim or defence when either would be sufficient, and the defect consists in the form of pleading them, that is, in joining them in the same count or plea instead of pleading them separately. Duplicity is a defect that can be taken advantage of only by special demurrer, at common law, and is the only defect that at common law is not reached by a general demurrer. In this state it is not only necessary to demur specially, but the particular in which the duplicity is claimed to exist must be set out.
Other objections have been made to the plea but they come within the same principle.
These conclusions result in an affirmance of the judgment below, but under the agreement of the parties as appears by the exceptions the judgment may be reversed pro forma, a repleader awarded, and the case remanded.