148 Me. 356 | Me. | 1952
On exceptions. This is a taxpayers’ bill brought to restrain the payment of money upon a contract
The amended bill is fatally defective. With respect to the existence of facts clearly material and essential to the maintenance of the bill, it alleges merely that the plaintiffs are informed and believe the facts. Whitehouse in his Equity Practice, First Edition, Page 243, Sec. 208, states:
“Whatever is essential to the plaintiff’s case and is within his knowledge and belief must be alleged positively as a fact. Where the bill alleges merely that the plaintiffs are informed and believe the facts set out in that clause of the bill, it is fatally defective. It does not allege the facts upon information and belief, it alleges information and belief of the facts only.”
The foregoing statement by Whitehouse is well sustained by the decisions of this court. In Messer v. Storer, 79 Me. 512 at 519, we said:
“It does not allege the facts upon information and belief. It alleges information and belief of the facts only. Such an allegation in equity is insufficient to raise the issue sought to be raised.”
“Chancery Rule XXVII provides that ‘all allegations of fact well pleaded in bill, answer or plea, when not traversed, shall be taken as true.’ The difficulty, however, is that the allegations to which these defective answers were made were not well pleaded. The complainant did not allege facts, but only that he was informed and believed certain allegations. In such cases Chancery Rule XXVII does not apply.”
In the case of Automobile Co. v. Hall and L. S. Bean Co., 135 Me. 382, after reiterating the rule, and citing Messer v. Storer, supra, Bailey v. Worster, supra, Whitehouse Equity Practice, supra, and the case of Robinson v. Robinson, 73 Me. 170, 177, we not only held that such allegations were not well pleaded, raised no issue, and that Equity Rule 27 did not apply, but we further held that such defective allegation could not be cured by proof, stating “Evidence without allegation is as futile as allegation without evidence.”
Although a demurrer, for the purpose of considering the sufficiency of the bill, admits the truth of the allegations therein, it admits only allegations of fact well pleaded. As to all of those facts of which the plaintiffs alleged only that they “are informed and believe,” the demurrer does not admit their existence. It admits only the plaintiffs’ information and belief respecting the same. As the existence of these facts was material and essential to the maintenance of the bill, the bill was fatally defective for lack of positive averment thereof. This is not a mere defect in form. The defect is one of substance. This is the necessary result of
Exceptions overruled.
Decree dismissing bill without costs affirmed.