B. F. Roden Grocery Co. v. Leslie

1. Bankruptcy; Discharge; Plea of. — A defendant’s plea of discharge in bankruptcy need not aver that the plaintiff’s debt was scheduled; for if it was not that was matter for special replication to plea. 2. Same; Evidence. — Where the action was upon a note or claim which the defendant maintained had been discharged in bankruptcy it -was competent to identify the note or claim sued on as one scheduled, and also to show by evidence that although the schedule described the creditor as B. F. R. & Co., the creditor was, in fact,, the B. F. R. Grocery Co. 3. Charge of Court; "Weight of Evidence. — A charge asserting that the jury should give greater weight to the testimony of one who testified certainly to a transaction than to that of a witness who testified vaguely, uncertainly and indefinitely, is properly refused as being a charge on the weight of evidence.

Assumpsit. Appeal from Coosa Circuit Court. Heard before Hon. S. L. Brewer. Assumpsit by B. F. Roclen Grocery Company against J. T. Leslie. Judgment for defendant, and plaintiff appeals. Tbe pleas set up that the debt sued on was contracted prior to the 28th day of November, 1902, and that on that date the defendant filed his petition in bankruptcy in the District Court of the United States for the Middle District of Alabama, sitting at Montgomery, praying to be adjudged a bankrupt under the acts of Congress, and that on February 3, 1903, he was duly discharged from all debts and claims which existed on or prior to • November 28, 1902, excepting such debts as are by law exempted from the operation of a discharge in bankruptcy, and the defendant says that the debt sued on was and is not such debt as is excepted from the operation of such discharge. The second plea contains the same allegation and sets out in addition the discharge in liaec verba. The demurrers raise the point that the plea does not aver such a state of facts as to show that the proceedings are regular and the discharge actually entered; that it does not show that the court was a court of competent jurisdiction to adjudge the defendant a bankrupt; that it- fails to allege that plaintiff had notice of the proceedings in bankruptcy, or that plaintiff had notice that the debt had been scheduled. The plaintiff assigned as errors the following questions asked of defendant by his counsel: “In 1902, did you owe the B. F. Roden Grocery Company, or B. F. Roden '& Co., any other indebtedness except this note?” And, “Was that note the one scheduled here for $118 in your claim?” And, “Was this note referred to in your schedule?” The following charge was refused to the plaintiff: “(3) I charge you, gentlemen of the jury, you, in weighing the testimony of this case, are to give greater weight to the testimony of a witness who testifies certainly to the transaction or conversations than you do to a witness who testifies vaguely, uncertainly, and indefinitely to the same transactions or conversations.” A plea of discharge in bankruptcy should allege the order of court adjudging the bankrupt. — Collier on Bankruptcy, 2&0; 5 Cyc. 2; Bankruptcy Act, Sec. 18g. The court erred in sustaining demurrer raising the question that the plea did not show that the claim was scheduled. — Collier on Bankruptcy 119; 5 Cyc. 229; Bankruptcy Act, S'ec. 7. Counsel discuss other assignments of error, but without citation of authority. No brief came to the Reporter.