Bradbury v. Tarbox

Emery, J. This action was begun December 14, 1900. While it was pending the defendant obtained a certificate of discharge from his debts from a state court of insolvency, January 14, 1901. Instead of pleading this discharge by a simple averment that on the day of its date such a discharge was granted to the defendant, setting forth a copy thereof, as authorized by statute R. S., c. 70, § 49, the defendant filed a special plea in bar after withdrawing all other pleas by consent. This special plea, therefore, is the only plea filed and its sufficiency is challenged by a demurrer. By electing to make his defense in this manner the defendant subjected himself to the rules governing special pleas in bar and was bound to make his special plea conform to those rules. They apply with as much strictness to a special plea of a discharge in insolvency as to any other special plea. Frary v. Dakin, 7 Johns. [521] 75; Frost v. Tibbetts, 30 Maine, 188. The plea must state facts and not mere conclusions of law. It must show affirmatively, by allegations of fact within itself, that the discharge is valid, that it is granted by a court having jurisdiction and upon due proceedings, and that it bars the debt sued for. All these allegations must be issuable, that is, such as would present an issue of fact for a jury if traversed. Tried by this rule this plea seems faulty in one respect at least. The discharge does not bar the debt sued for if the latter was a debt created by the fraud or embezzlement of the insolvent, or was for necessaries furnished to the debtor, or his family, within thirty days of the commencement of proceedings. The plea should have distinctly alleged that the debt sued for was not created by either circumstance. Frost v. Tibbetts, 30 Maine, 188. As to this, the only allegation in the plea is that the debt sued for “is not a debt which is by said chapter 70, R. S., excepted from the operation of the defendant’s discharge in insolvency.” This is a statement of a conclusion of law, not an allegation of a fact. A traverse of that statement would not present an issue of fact for the jury. What debts tbe statute exempts from the discharge is a question of law. Whether a debt was created by fraud, or was for necessaries, is a question of fact, but it must be alleged and traversed as a question of fact before it can be tried by a jury. In Frost v. Tibbetts, supra, 30 Maine, 188, the plea described the plaintiff’s claim and averred that it was barred by the discharge. On a general demurrer to the plea the defendant argued that this allegation negatived the debt being one of the excepted classes. The court, however, adjudged it to be insufficient for that purpose. The language used in this plea is no more than a periphrase of that in Frost v. Tibbetts. It means no more than that the discharge barred the debt, — a mere conclusion of law. As held in Frost v. Tibbetts, the general demurrer reaches this fault, it being a lack of necessary allegation. Though the plaintiff is said to have “ demurred specially,” his demurrer was general as well as special and is available as such. Chitty’s PL (16th Am. ed.) 696; Burnet v. Bisco, 4 Johns. 235. The fault may seem [522] very technical, but it is a fault under the rules, and as it has been exposed by demurrer it must be corrected. This the defendant can do upon the payment of costs from the time the demurrer was filed. Exceptions sustained. Demurrer sustained. Defendant has leave to amend on payment of costs.