on which this court now decides: for the Court of King's 1833. GROVES V. COWHAM. to a recompense in damages. Rule discharged. BIRCHAM v. CREIGHTON. May 23. under the insolvent debtors' act THIS 'HIS was an action on a bill of exchange, to which A discharge the Defendant pleaded the general issue, under which he proposed, at the trial in April last, to give in evidence his discharge, under the insolvent debtors' act. But the evidence being rejected, on the ground that such discharge ought to have been pleaded, a verdict was found for the Plaintiff; which Bompas Serjt. obtained a rule nisi to set aside on payment of costs, and at the same time to withdraw the general issue, and plead the discharge under the insolvent debtors' act. Several affidavits were filed, in which the Defendant proposed to shew that the Plaintiff's demand was one from which the Defendant ought to be discharged, but there being other grounds for resisting the demand, his attention was not called to his defence under the insolvent debtors' act, till just before the trial, when the learned Judge who presided refused to allow him to amend by substituting a plea of discharge for the general issue. It appeared, however, that his attention had been called to this ground of defence as long ago as December last, when a Judge at chambers rejected must be pleaded, and cannot be given in evi dence under the general issue. an 1833. BIRCHAM J. CREIGHTON. an application to discharge him, under section 46. of 7 G. 4. c. 57. Upon which Jones Serjt., who shewed cause, contended that the Court would not now let the Defendant in, after verdict, to amend his plea; the statute having expressly provided, s. 61., that a discharge shall be pleaded, and the Defendant having had the opportunity of doing so from December to April. Jones then contended that, according to the statement in the affidavits, the Defendant was not entitled to be discharged. Bompas. The Court will grant the Defendant the indulgence required, because it is at least doubtful whether a discharge, under the insolvent debtors' act, ought to be pleaded. The general rule is, that, in assumpsit, any thing which destroys the Plaintiff's demand may be given in evidence under the general issue. The statute relating to bankruptcy, indeed, requires the bankrupt's certificate to be pleaded. But the clause in the insolvent debtors' act, which permits the insolvent to plead his discharge generally, applies only to cases in which a plea of discharge may be necessary; as to a recognizance, bond, or the like, and not to an action of assumpsit. In Ford v. Chilton (a), it was held the discharge need not be pleaded. Bompas then went into the affidavits, to shew that the Defendant was entitled to be discharged from this debt. TINDAL C. J. It appears to me that this rule ought to be discharged, and that one ground is sufficient for the decision we pronounce. For I can entertain no doubt that, on the construction of this act of parliament, a discharge under the insolvent debtors' act must be (a) 2 W. Black. 798. pleaded, 1833. BIRCHAM V. pleaded, and cannot be given in evidence under the general issue. And this is a well known rule, laid down in Comyn's Digest, Pleader, 2G.16., Knight v. Preston (a), Cockerill v. Armstrong and Others (b). It is true the lan- CREIGHTON, guage of the statutes, referred to in those authorities, is not precisely the same as that of 7 G. 4. c. 57., but the ground on which the rule proceeds, is, that the discharge is a statutory answer to the Plaintiff's demand, and does not go to the destruction of the debt. Indeed, from the very words of the late act, it may be collected that a discharge must have been specially pleaded before the passing of that act; because, by section 61., it is enacted, that "it shall and may be lawful for such person, his or her heirs, executors, or administrators, to plead generally that such person was duly discharged, according to this act, by the order of adjudication made in that behalf, and that such order remains in force, without pleading any other matter specially." This shews that the Defendant must plead his discharge, although he may plead it generally; for the debt is not gone, but merely the Plaintiff's remedy against the person of his debtor, and against his future effects, except under the warrant of attorney entered up in the insolvent debtors' court. But pleading the discharge generally is very different from pleading the general issue, which disaffirms the contract. There can be no doubt, therefore, that the discharge, if relied on as a defence, ought to have been pleaded; and as the Defendant must have had his attention drawn to this line of defence when he attended the Judge's chambers in December last, his application to amend is now too late. This is a sufficient ground for discharging the rule, although, if we were disposed to make it absolute, it does not appear upon (a) 2 Wils. 332. (b) Willes, 99. the 1833. BIRCHAM v. CREIGHTON. the affidavits that the Defendant would be entitled to his discharge from the Plaintiff's claim, within the provisions of s. 46. 7 G. 4. c. 57. The PARK J. I am of the same opinion. There is no pretence for saying that the Defendant can take advantage of his discharge without pleading it. It is true he need not go into all the particulars, as in the older plea of bankruptcy, before the 5 G. 2. allowed a more general statement; but he must plead the discharge, and cannot give it in evidence under the general issue. statute says, "If any suit be brought against any such person, it shall be lawful for such person to plead generally, that such person was duly discharged according to this act." As to the defence itself, it appears to me, upon these affidavits, that the Defendant has not brought himself within s. 46. of 7 G. 4. c. 57. GASELEE J. I am also of opinion, that this defence ought to have been pleaded. This general form of pleading a discharge is to be found also in 53 G. 3. c. 102. s. 32.; and, since the passing of that act, no one ever heard of a discharge being given in evidence under the general issue. The case in W. Blackstone was on the statute 9 G. 3. c. 26., by which act the point was raised in that case, not in an action, but on motion. With respect to the amendment now proposed, the facts disclosed on the affidavits are all against the application. BOSANQUET J. I am also of opinion that this discharge should have been pleaded; and that, in this respect, it stands on the same footing as a certificate under the bankrupt act. Application was made to me at chambers, in December last, to discharge the Defendant under the provisions of s. 46. 7 G. 4. c. 57.: but I thought 1833. BIRCHAM V. thought the Defendant did not bring himself within the provisions of that section, and rejected the application; so that the Defendant was put on his guard, and, if he proposed to contest that decision, had full opportunity CREIGHTON. of putting his supposed discharge on record. I think the application is now too late, and that this rule must be Discharged. HOLLAND V. BIRD and SKATE. May 25. CASE for an excessive distress for rent. The second Case lies, as "And well as tres count of the declaration, was as follows: pass, for an whereas also the Defendants took, seized, and distrained excessive dis divers goods and chattels of the Plaintiff, to wit, &c., as, and for, and in the name of a distress for certain rent, to wit the sum of 3l. 6s., then due and in arrear from the Plaintiff to the said Bird, for, and in respect of, certain apartments with the appurtenances, in, and parcel of, a certain dwelling-house, with the appurtenances, situate, &c. before then held and occupied by the Plaintiff, as tenant thereof to the said Bird: and, thereupon, afterwards, and whilst the Defendants had the said goods and chattels, under such distress as aforesaid, to wit, on, &c. at, &c. the Plaintiff tendered and offered to the Defendants, in satisfaction and discharge of the said last mentioned arrears of rent, and of the costs and charges of the said last mentioned distress, a certain large sum of money, to wit, the sum of 6., the same being then and there a sufficient and proper sum to satisfy and discharge the said arrears of rent, together with all the costs and tress after tender of the rent due. |