1838.

TROUP

V.

BOFFI.

defendant as a creditor of the defendant for and in respect Each. of Pleas, of the causes of action in the declaration mentioned in the schedule of the said defendant, yet he hath not in and by his said replication replied any matter or thing sufficient to shew that the defendant was not duly discharged, but has relied upon the want of any notice to him the plaintiff before the making of the order for the filing of the petition upon which the defendant applied for his discharge, and of his schedule, and of the time and place appointed for hearing the matters of the said petition and schedule, whereas the omission to give such notice to the plaintiff was the omission of the Court for the Relief of Insolvent Debtors, or the omission or neglect of some officer thereof, and does not invalidate the discharge of the defendant, the schedule filed by the defendant having described the name of the plaintiff and the causes of action in the declaration mentioned: and also for that the matter relied on by the plaintiff in his said replication, namely, the want of notice, if any objection at all, is at most only a ground for applying to the Court for the Relief of Insolvent Debtors to rehear the matters of the said petition of the defendant, or to review, vary, or discharge the said order, and is no answer in this action to the order discharging the defendant, so long as the same remains a record of the said Court for the Relief of Insolvent Debtors, in no wise reversed, annulled, set aside, or otherwise vacated. And also, that the plaintiff having replied that he had not at any time before the making of the said order any notice whatever of the filing of the said petition, and that he, the plaintiff, was resident within the United Kingdom, and could, and might, and ought to have been served with such notice, must be taken by his said replication to have relied on the want of notice to himself personally, yet the plaintiff hath not averred or shown by his said replication that he was a creditor whose debt amounted to the sum of 57., or that he was in any otherwise entitled to such notice..

VOL. III.

SS

M. W.

1838.

Exch. of Fleas, And also, that it does not appear with sufficient certainty in or by the said replication, whether the plaintiff relies on the want of notice to himself personally, or that no notice was given in the London Gazette, and by reason thereof the defendant cannot take any safe or certain issue thereon.

TROUP

0.

BOFFL

Jervis, in support of the demurrer.-The replication admits that the plaintiff was properly described in the schedule, and that the defendant was discharged from the debts contained in it; but the objection is, that the plaintiff was not personally served with a notice of the filing of the petition. The question turns on the construction of several clauses of the 7 Geo. 4, c. 57. The tenth section points out in what cases, and under what circumstances, persons in custody may apply to the insolvent Court for their discharge. The 40th section enacts, that after petition filed, the prisoner shall deliver in a schedule containing a description of his debts, and of all and every person and persons to whom such prisoner shall be indebted, and a full account of his property. The 41st enacts that the Court shall provide a time and place for hearing the petition and schedule. Then comes the 42nd section, which enacts, "That the Court shall cause notice of the filing of every such petition and schedule, and of the time and place so appointed as aforesaid, for hearing such petition and schedule, to be given by such means as the Court shall direct, to the creditor or creditors at whose suit any such prisoner shall be detained in custody, or the attorney or agent of such creditor or creditors, and to the other creditors named in the schedule of such prisoner, and resident within the United Kingdom, and whose debts shall amount to the sum of 5l., and to be inserted in the London Gazette, and also, if the said Court shall think fit, in the Edinburgh and Dublin Gazettes, or either of them, and also in such other newspaper or newspapers as the said Court shall direct." The first observation is, that the notice is to be given to persons

1838.

TROUP

V.

whose debts amount to 5l., but here it is not shown that Exch. of Pleas, the plaintiff's debt amounted to that sum, and therefore it is not made out that the plaintiff was entitled to notice at all. This action being in assumpsit for unliquidated damages, it cannot be collected what is the amount due. Again, it is for the Court to direct by what means notice is to be given; and how is this Court to know the practice of the Insolvent Court, and in what manner notice has been directed to be given? If the practice of the Court has not been complied with, the practice ought to have been set out, and a non-compliance with it shewn. The Insolvent Court having discharged the defendant, if they have done so improperly, it is their default and not the defendant's, and the plaintiff has no right to attempt in this way to review the decision of that Court. There are many authorities bearing indirectly upon this case. In Dimond v. Clarke (a), it was held, under the 37 Geo. 3, c. 90, that the debtor is only discharged as to those creditors to whom he has given notice of his intention to apply for his discharge; but such a notice is no longer essential. When the insolvent has misdescribed his creditors in his schedule by mistake, and with no intent to deceive, it has been held to be a good discharge notwithstanding. Reeves v. Lambert (b), Nias v. Nicholson (c). Those cases could not have arisen if it had been necessary to serve the creditor personally. The 60th section may perhaps be relied upon, but that does not require such a notice as is here contended for. That section enacts, that no person who shall have become entitled to the benefit of this act by any such adjudication as aforesaid, shall at any time thereafter be imprisoned by reason of the judgment as aforesaid entered up against him or her, &c., but that upon every arrest or detainer in prison, upon any

(a) 1 Chit. Rep. 222. (b) 4 B. & Cr. 214.

(c) 2 Car. & P. 120; Ry. & M. 322.

Exch. of Pleas, such judgment &c., it shall and may be lawful for any

1838.

Judge of the Court from which any process shall have issued in respect thereof, and such judge is thereby required, to release such prisoner from custody, unless it shall appear to such judge, upon inquiry, that such adjudication as aforesaid was made without due notice, where notice is by this act required, being given to or acknowledged by the plaintiff of such process, or by him or her dispensed with, by the acceptance of a dividend under this act, or otherwise." If the 67th section is looked to, it will be seen that the adjudication of the Insolvent Court is to be final and conclusive, unless it has been improperly made or fraudulently obtained; in which case, upon the application of the prisoner or a creditor, the matter may be re-opened and re-heard, and a fresh adjudication made according to the merits. This adjudication cannot be said to have been fraudulently obtained, since the amount of the plaintiff's debts was properly inserted in the schedule. The 46th section points out what the insolvent is to do to entitle himself to his discharge, and if that section is referred to, it will be seen that it never could have been intended that the insolvent should serve a notice on his creditors. He is to be discharged, not upon proof of notice having been given, but "upon such prisoner's swearing to the truth of his or her petition and schedule, and executing such warrant of attorney as hereinafter directed."-But the form of the replication does not raise the point as to the necessity of notice. It ought to have gone on and negatived the receipt of a dividend, as the plaintiff might have waived notice by such receipt. Or a notice might have been inserted in the London Gazette, and such a notice might have been ordered by the Court to be given.

Hoggins, contrà.-A notice is necessary, and the replication is sufficient. The 46th section, which gives the power of discharge, has reference to the 42nd and 43rd

1838.

TROUP

v.

sections. The 42nd is the one requiring the notice Esch. of Pleas, to be given; the 43rd provides, that "at such hearing as aforesaid," that is, after such notice required by the former section has been given, the Court shall examine into the matters of the petition and schedule upon the oath of such prisoner, and of such parties and other witnesses as the Court shall think fit; and in case such notice as the said Court shall direct shall have been given by any creditor of his or her intention to oppose such prisoner's discharge, it shall be lawful both for the said creditor, and any other creditors, to oppose such prisoner's discharge, and for that purpose to put such questions to such prisoner and examine such witnesses as the Court shall think fit. That refers to the creditor who has received the notice required by the 42nd section, and who may thereupon give notice to oppose the prisoner's discharge. The cases of Sharp v. Gye (a) and Pugh v. Holkham (b) proceed upon the ground that notice to the creditor is necessary, as the question there was whether the notice had been given to the right persons. [Parke, B.-You do not aver that the plaintiff's debt amounted to 51.] The declaration alleges that the defendant was indebted to the plaintiff in the sum of 100%., and this allegation is not laid under a videlicet, and is therefore, in pleading, though not for the purposes of proof, material; and the defendant by his plea admits the declaration to be true. [Parke, B.-No, not at all: no precise sum is admitted. It is only admitted that something is due, and then the defendant says, whatever that sum is, I am discharged from it by the Insolvent Debtor's Act.] Hoggins then applied for leave to amend.

PARKE, B.-It cannot be any benefit to you to amend, as I apprehend there is no order of the Insolvent Court requiring a personal service of such a notice. The In

(a) 4 Car. & P. 311.

(b) 5 Car. & P. 376.