11thly, INFANCY.

We have already considered the capacity of an infant to contract; and the instances in which he is liable upon his contracts (d). And it only remains for us to remark, more minutely, upon the mode of taking advantage of this defence.

An infant defendant (e) must, in all cases, appear and defend by guardian; and his appearance by attorney is a ground upon which he may support a writ of error (f). The guardian must be admitted (g) before plea, and the admission must be stated in the plea (h). If, however, the defendant be of full age at the time he appears and pleads his infancy, he may appear and plead by attorney.

Infancy must now, by the rules on pleading of Hilary Term, 1834, be pleaded specially.

If to a plea of infancy, the plaintiff reply, denying the infancy, or that the defendant ratified the promises after he came of age, it will be incumbent on the defendant to prove the time of his birth; this evidence being more peculiarly within his own power (i). After the defendant has established his nonage when the contract was made, the plaintiff, upon a replication of a subsequent ratification, must prove an express promise to pay after the defendant attained full age, and before the commencement of the action (k). The nature of a subsequent confirmation, necessary to establish a liability, has been already fully explained.

The defendant may establish his infancy by the evidence of some of his family. An entry in the Register of the christening of a child, as to the time of birth, is not of itself, evidence of the age (1).

If the plaintiff reply that the goods, &c., were necessaries, no evidence of the infancy need be given, but it lies upon the plaintiff

(d) Ante, 113.

(e) An infant plaintiff must sue by prochein ami, or guardian, 2 Saund. 117 f, note (1); Tidd, 9th ed. 99.

(f) Frescobaldi v. Kinaston, 2 Stra. 784; 2 Saund. 117 f, n. (1), 212 a, 4,5. But the plaintiff, if he fail in the action, cannot maintain error on this ground; see Bird v. Pegg, 5 B. &

Ald. 418.

(g) See Tidd, 9th ed. 99. (h) 2 Saund. 217 g, note (1). (i) Borthwick v. Carruthers, 1 T. R. 648.

(k) Thornton v. Illingworth, 2 B. & C. 824; 4 D. & R. 545, S. C.

(1) Wihen v. Law, 3 Stark. R. 63; Rex v. Clapham, 4 C. & P. 29.

to prove the defendant's rank and situation in life, and that the goods, &c., were suitable to his means and station (m). Costs are payable by an infant defendant (n).

12thly, COVERTURE.

The incapacity of married women to contract, and the exceptions to the general principle, have been already noticed.

Coverture cannot, by the rules on pleading promulgated by the judges, be given in evidence under the general issue. It must be pleaded specially. If the marriage took place after the contract, it should be pleaded in abatement (o).

A woman defendant, who has declared herself to be a feme sole, and, as such, has executed deeds, and maintained actions, is not, therefore, estopped from setting up the defence of coverture (p).

If the defendant be married at the time of pleading, she must plead in person, and not by attorney (q).

Of course, it is for the defendant to prove her marriage, if denied (r). This may be effected by producing an examined copy of the register; and proving her identity, that is, that she is the person described in the register (s). The marriage may also be proved, without the register, by parties who were present at the performance of the ceremony; and this without showing the publication of banns, or a licence to marry. And it seems that the defendant may establish her coverture by proof of general reputation that she and her husband were married; that they cohabited, and were received by their friends, &c. as husband and wife (t).

As the law presumes the death of a person who has been absent and not heard of for seven years (u), it will be incumbent on the defendant in such a case to prove also that her husband was alive within the seven years preceding the time the contract was entered into (x).

Wilson v. Mitchell, 3 Campb. 393.
(s) See 2 Phil. Ev. ch. 12, s. 3;
2 Stark. Ev. tit. Marriage.

(t) 2 Stark. Ev. 505, 2nd ed.; Leader v. Barry, 1 Esp. R. 353; Key v. Duchesse de Pienne, 3 Camp. 123.

(u) Doe v. Jesson, 6 East, 80, 85. (x) Corbett v. Poelnitz, 1 T. R. 5; Hopewell v. De Pinna, 2 Camp. 113; Doe v. Griffin, 15 East, 293.

13thly, BANKRUPTCY AND CERTIFICATE.

The law of bankruptcy as it affects a contract, and the nature and effect of contracts with uncertificated bankrupts and their assignees; have been already discussed (y). It only remains for us to consider the form of pleading, and mode of establishing, the defence of bankruptcy.

"Any bankrupt who shall, after his certificate has been allowed, be arrested, or have any action brought against him for any debt, claim, or demand, provable under the commission, shall be discharged upon common bail; and may plead in general that the cause of action accrued before he became bankrupt, and may give the act of parliament and the special matter in evidence; and such bankrupt's certificate, and the allowance thereof, shall be sufficient evidence of the trading, bankruptcy, commission, and other proceedings precedent to the obtaining such certificate (~).”

The general plea of bankruptcy may be pleaded, and will suffice, in the case of an action for the recovery of a debt, or demand, contracted before, though not payable until after, the act of bankruptcy or commission; or of a debt bonâ fide contracted, and payable, after the act of bankruptcy, and before the commission, and which is provable by virtue of the provisions before mentioned (a). And if the certificate were obtained after declaration, but before plea, it would be sufficient to rely upon the general plea given by the statute, without pleading the bankruptcy specially, that is, setting out all the proceedings (b); but if the certificate were not allowed until after plea pleaded, it seems that it should be pleaded puis darrein continuance; and that in such case it should be specially pleaded as at common law, stating fully the trading, petitioning creditor's debt, fiat in bank

(y) Ante, 152 to 161.

(z) 6 G. 4, c. 16, s. 126; 3 Chitty, Pl. 5th ed. 911.

(a) See per Cur., in Charlton v. King, 4 T. R. 156; see also Stedman v. Martinnant, 12 East, 664; Westcott v. Hodges, 5 B. & Ald. 12; Attwood v. Partridge, 12 Moore, 433, 434 n. a; 4 Bing. 209, S. C. In l'an Sandau v. Corsbie, 3 B. & Ald. 13, to an action for the recovery of money, paid

by a surety after the defendant's bankruptcy, the latter pleaded the bankruptcy specially, showing all the proceedings. It is quite clear, upon the wording of the 6 G. 4, c. 16, s. 126, that the general plea is sufficient, whenever the plaintiff might have proved under the commission.

(b) Tower v. Cameron, 6 East, 413; Harris v. James, 9 id. 82.

ruptcy, the meetings, conformity of defendant, and his certificate, &c. (c).

The general plea of bankruptcy must conclude to the country (d). It does not require the signature of counsel in either of the courts. The defendant cannot give his bankruptcy in evidence under the general issue (e): and it would seem that the plaintiff's bankruptcy before action cannot, since the Rules on Pleading of Hilary Term, 1834, be shown under that plea (ƒ).

The plaintiff cannot reply specially, to a plea of the defendant's bankruptcy pleaded generally: he has merely to add the similiter to the general plea of bankruptcy, under which he may show any special matter, proving the invalidity of the certificate, or defeating or avoiding its operation, either in respect of the grounds mentioned in the act (g), or on account of fraud (h).

To support the plea of bankruptcy, the defendant has only to produce his certificate, duly allowed (i). The plaintiff cannot, it seems, in answer, show matter which impeaches the validity of the commission only, without affecting the certificate (k). The plea puts merely the certificate in issue.

Where one of several persons, who were joint debtors, is discharged from liability by his bankruptcy and certificate, or under an insolvent act, the creditor need not now sue him with the other parties; and if the non-joinder be pleaded in abatement, the bankruptcy and certificate, or discharge under the insolvent act, may be replied (7).

14thly, DISCHARGE UNDER THE INSOLVENT ACT.

Having noticed the operation of a discharge under the Insolvent Act upon the debts and contracts of the debtor, and the effect of

(c) Todd v. Maxfield, 6 B. & C. 105; 9 D. & R. 171, S. C. See the precedent, 3 Chitty Pl. 5th ed. 1243, 913, which requires alteration if the bankruptcy were since the statute 1 & 2 W. 4, c. 56.

(d) Sheen v. Garrett, 6 Bing. 686; 4 M. & P. 525, S. C. See Miles v. Williams, 1 P. Wms. 258; 10 Mod. 160 and 247, S. C. These latter were decisions on 5 G. 2, c. 30, s. 7; but the 6 G. 4, c. 16, s. 126, is similarly worded in this respect.

(e) Gowland v. Warren, 1 Camp. 363; Stedman v. Martinnant, 12 East,

(f) See Webb v. Fox, 7 T. R. 396; Bul. N. P. 153; Kinnear v. Tarrant, 15 East, 622; Scott v. Clare, 3 Camp. 236.

(g) Wilson v. Kemp, 2 M. & Sel. 549; Hughes v. Morley, 1 B. & Al. 22; see sect. 130 of 6 G. 4, c. 16.

(h) Horn v. Ton, 4 B. & Ad. 78. (i) Taylor v. Welsford, Moody & M. 503; 6 Geo. 4, c. 16, s. 126.

(k) See Bateson v. Hartsink, 4 Esp. R. 43, 45; Eden, 2nd ed. 426, 427; and the words of the 126th section, ante, 673.

(l) 3 & 4 W. 4, c. 42, s. 9.

contracts made by an insolvent whilst in prison (m), we will consider the pleadings and evidence affecting this defence.

We have seen that if the insolvent be sued for a debt from which he has been discharged, he may plead generally (n), that "he was duly discharged according to the act, by the order of adjudication made in that behalf, and that the order remains in force;" without pleading any other matter specially (o); and that to this plea "the plaintiff may reply generally, and deny the matter pleaded, or reply any other matter or thing, showing the defendant was not entitled to the benefit of the act, or was not duly discharged, as if the defendant had pleaded his discharge specially (p)."

This general form of plea suffices, not only where the action is brought to recover a debt contracted before the filing the schedule, but also where the plaintiff claims on a new security for, or promise to pay, such former debt (g). In Evans v. Williams (r) it appeared that the defendant and his surety signed a promissory note, that the defendant was then discharged under the act, whereupon the payee applied to the surety for payment, and the defendant to protect him joined him in a new note. It was held, that the action could not be maintained, although there was the new consideration of forbearance to the surety.

It seems that if the general plea be pleaded, and the plaintiff merely reply that the defendant " was not duly discharged," the replication only puts in issue the discharge; and the plaintiff cannot thereon object any irregularity rendering the discharge inoperative, as the want of a petition, &c.; and upon such issue the defendant is not bound to prove the petition (s).

A copy of the petition, schedule, order of adjudication, and

(m) Ante, 161 to 167.

(n) The plea should be signed by counsel. The discharge cannot be given in evidence under the general issue; Bircham v. Creighton, 9 Bing. 11; 3 M. & Scot. 355; unless the debt were not noticed in the schedule at the request of the plaintiff; who may then sue; see Carpenter v. White, 3 Moore, 231, 232; Howard v. Bartolozzi, 1 N. & M. 69; 4 B. & Ad. 555; 6 C. & P. 13, S. C. An agreement by an insolvent with his creditor that the debt should be omitted in the schedule, and that a cognovit then held should be suspended and

revived after the discharge, held fraudulent; Tabram v. Freeman, 4 B. & Ad. 887.

(0) See Form, &c. 3 Chitty, Pl. 5th ed. 919. Semble, that it is safer to plead the matter specially, setting out the petition, &c., where the plea is puis darrein continuance; see id. 1244, 921; Darley v. Brown, 8 Price, 607. (p) 7 G. 4, c. 57, s. 61.

(q) See the words of the act, ante, 164. (r) 1 C. & M. 38.

(s) Andrew v. Pledger, Moo. & M. 508; 4 C. & P. 274, S. C.; post, 676. See Forms, 3 Chitty Pl. 5th ed. 1149.