Halpine v. May
100 Mass. 498
Mass.
1868
Check Treatment
Gray, J.

Upon the facts stated in the pleadings and bill of exceptions, the plaintiff’s claim appears to have arisen out of a contract of bailment or agency in the ordinary course of business, and not upon a trust of such a character as would constitute a fiduciary debt which would not be barred by a discharge under the insolvent law. Chapman v. Forsyth, 2 How. 202. Hayman v. Pond, 7 Met. 328. Wolcott v. Kodge, 15 Gray, 547. Gen. Sts. c. 118, § 79. All considerations of law and fact, not appearing on the record, and bearing upon the question whether this claim was barred by the discharge, should have been presented at the trial, either by replication, or by offer of proof and amendment of the pleadings, if necessary'; and could not be suggested after verdict, unless reserved by leave of the court for subsequent consideration, which does not appear to have been done in this case. The statement in the bill of exceptions that, “ by agreement of counsel, they tried before a jury only the question of the validity of the discharge,” is explained by referring to the pleadings; and evidently means that the trial did not include the question of the defendant’s original liability, as put in issue by his first answer, but was confined to the issue of the discharge *500in insolvency as set up in his additional answer in the nature of a plea puis darrein continuance. This issue involved all matters bearing upon the question whether the discharge was a bar to the plaintiff’s claim. Exceptions overruled.