JOSEPH CORPENING, ADM’R &c. vs. H. P. GRINNELL.
Where a defendant wishes to avail himself of a certifícate of discharge in Bankruptcy, obtained after his pleas had been antered, he must plead Has a plea since the last continuance.
Appeal from the Superior Court of Law of Cherokee County, at the Spring Term 1846, his Honor Judge Pearsom presiding.
*16This was an action of debt upon a promissory note under seal, to which the defendant pleaded a certificate of bankruptcy. The suit was commenced in the County Court of Cherokee, and the pleas wrre entered at the June Term 1844, of that Court. After a verdict and judgment in favor of the plaintiff in the County Court, it was carried to the Superior Court, upon the appeal of the defendant, and was tried at the Spring Term 1846, when the defendant produced and read in evidence a certificate of his discharge as a bankrupt, granted by the District Court of the United States, at Wilmington, on the 4th of November, .18 14. The presiding Judge was of opinion, 1 hat the defence relied upon could not be urged under the pleas upon the record, because the certifícale of discharge was not obtained, until after they were entered. He held further, that the certificate of bankruptcy ought to have been pleaded by the defendant, as a plea since the last continuance.
The plaintiff had a verdict and judgment, and the defendant appealed.
J. TF. Wood jin, for the plaintiff.
Francis, for the defendant.
Tattt.e, J.
We entertain no doubt of the correctness of the opinion expressed by his Honor in the Court below. A plea must be true at the time when it is pleaded, and it cannot avail the parly by becoming so at a subsequent time, but before the trial of the issue. If any matters of defence arise, after the term of the Court, when, according to the regular course of practice, the party must enter his pleas, he must plead it puis darrein continuance, not in bar of the action, but to the further prosecution of the suit. Such is clearly the general rule, and the plea of a certificate of bankruptcy forms no exception to it. 1 Strph. N. Pri. 697, 698 Eden on Bankruptcy 426. *17
Langmead v. Beard, cited in 9 East Rep. 85. Tower v. Cameron, 6 East 413. 2 Chitty's Plead. 427. These authorities relate more particularly to the English law of bankruptcy, but they are equally applicable to the “Act to establish a uniform system of bankruptcy throughout' the United States.” For that act merely declares, in the 4th section, that a discharge and certificate, when duly obtained under it, “shall and may be pleaded, as a full and complete bar to all suits brought in any Court of judicature whatever,” leaving the time and manner of pleading such discharge and certificate to be determined by the rules of pleading, theretofore established. The judgment must be affirmed.
Per Curiam.
Judgment affirmed.