Robinson v. Wadsworth , 49 Mass. 67 ( 1844 )

Wilde, J.

One of the exceptions in this case raises a question of practice of considerable importance, especially since the iSt. of 1836, c. 273, abolishing special pleading, has so greatly increased the specifications of defence and avoidance, now required on the motion of either party. That statute authorized the court to pass such orders respecting notice to the opposing party of matters intended to be given in evidence by either party, as should be necessary to prevent surprise, and to afford opportunity for preparation for trial. The court had authority, under the statute, to pass orders or rules, conforming substantially, in many respects, to the admirable rules of special pleading. But it was doubted whether such an extended system of rules, though useful in practice, might not be opposed to the object and intent of the statute; and a few simple rules only were adopted, one of which applies to the exception in the present case. The 57th rule provides that “ either party may, on motion, have an order requiring the adverse party to file a statement in writing of any specific and substantive matter of discharge or avoidance, which he proposes and intends to give in evidence on trial; and such party shall not be allowed to give in evidence any such matter of discharge or avoidance, unless specified in such statement. And the parties shall be allowed, upon reasonable cause shown, to amend their respective statements, in such manner, and upon such terms, as the court may think reasonable.” 24 Pick. 401. It is obvious from this rule, that all specifications of defence or avoidance are to be made and settled before trial; and if they are objected to for generality, a new order may be moved for a further and more particular specification, as was done in the present case. A further specification was given, which was still open to objection ; but none was made before the parties proceeded to trial; and the objection then came too late. The parties were then at issue, though not formally, on the alleged fraud of the defendant in obtaining his certificate of discharge, as stated in the particulars The rule of practice in this respect is the same in England New York, and in this Commonwealth. 3 Chit. Gen. Pract. 611—618. 1 Dunlap’s Pract. 406. Graham’s Pract. 437. Howe’s Pract. 410-418. The practice is, says Chitty, if the plaintiff refuses to deliver particulars, a further order must be moved for, and if the order be not complied with, the defendant may sign judgment of non pros. Howe says the rule here is, that an insufficiency of a particular, in any respect in which it might have been rectified if the objection had been made earlier, cannot be objected to on the trial. This, I believe, has been the uniform practice. Nor does it appear that this was the precise objection in the present case. The defendant’s objection was, that there was no particular of the matter offered in evidence; thus treating the particular, embracing that and similar matters, as a nullity by reason of its generality. But this, by the rules of practice, is not to be allowed. Howe’s Pract. 415.

In the plaintiff’s first and second specifications, he gave notice that he should rely, in avoidance of the defendant’s certificate of discharge, on,the defendant’s concealment of sundry notes, accounts, and obligations'for money, contrary to the provisions of the bankrupt law. At the trial, the plaintiff offered to prove that the defendant secreted a demand, of about $90, against one Arnold, the proceeds of which afterwards went to the defendant’s use. This matter was embraced in the specifications, and should have been admitted.

As to the other objection to the admission of the disclosure made by the defendant to his counsel, who assisted and advised him in making out his inventory, and the advice of his counsel thereon, we think the evidence was rightly admitted, not as declarations merely, but as facts, and part of the res gesta.

But as the first exception is, in our opinion, well founded, the verdict is to be set aside and a new trial granted.