25 Me. 73 | Me. | 1845
The opinion of the Court was by
Noah McKusick, who was summoned as trustee of the principal defendant, made a disclosure, which the plaintiff’s counsel do not contend should charge him. The plaintiff then files an allegation, without stating any specific facts, that the conveyance of certain chattels, therein mentioned, by Thurston P. McKusick to Noah McKusick was made in fraud of the plaintiff’s rights as a creditor, and therefore void. The trustee replies, that the chattels mentioned by the plaintiff in his allegation are identical with those referred to in his disclosure, and that the conveyance thereof was not fraudulent as against the creditors of the principal de-
The rejoinder shows a reliance upon proof to be offered, of new matter, which is not stated or referred to in any manner in the allegation filed by the plaintiff. This, by a well known rule of pleading, is a departure from the allegation, and may be taken advantage of by general demurrer. Larned v. Bruce & al. 6 Mass. R. 57 ; Nels. Abr. 638; 4 T. R. 504 ; Stearns v. Patterson, 14 Johns. R. 132.
But if the plaintiff had at first stated all which is contained both in his allegation and rejoinder, it would have been bad upon general demurrer, as being in substance insufficient. “ The answer and statements sworn to, by any person summoned as trustee, shall be considered as true, in deciding how far he is chargeable, until the contrary is proved ; but the plaintiff and trustee may allege and prove other facts not stated or denied, by the supposed trustee, which may be material in deciding the question.” Rev. St. c. 119, § 33, amended by the act. of 1842, c. 31.
After the disclosure, pertinent evidence may be introduced by the plaintiff’ and trustee; but the former cannot show by direct proof, that any statement of the trustee in the disclosure is untrue, nor can the latter adduce direct evidence of confirmation of facts disclosed by him. But before “other facts” can be proved, they must be alleged; and to enable the plaintiff to hold the trustee charged, the allegation must be as distinct and specific as the proof expected to be offered in their support. This is necessary to secure the rights of the trustee; he should be able to know, whether the facts to be shown are such as are not stated or denied in his disclosure, or whether in his opinion they are relevant to the question, that he may, if he pleases, demur to the sufficiency of such
Rejoinder adjudged bad.
