32 N.C. 15 | N.C. | 1848
This was an action of debt upon a promissory note under (16) seal, to which the defendant pleaded a certificate of bankruptcy. The suit was commenced in the County court of Cherokee, and the pleas were 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 4 November, 1844. The presiding judge was of opinion that the defense relied upon could not be urged under the pleas upon the record, because the certificate 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. 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 party by becoming so at a subsequent time, but before the trial of the issue. If any matters of defense 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 darreincontinuance, 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 Steph. N. Pri., 697, 698; Eden on Bankruptcy, 426; Langmeadv. Beard, cited in 9 East, 85; Tower v. Cameron, 6 East, (17) 413; 2 Chitty 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 *24 bankruptcy throughout the United States." For that act merely declares, in section 4, 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.