3 La. Ann. 208 | La. | 1848
The judgment of the court was pronounced by
In April, 1842, a suit was institute'd by Stevens against Wellington, for the recovery of a slave. Wellington called in warranty his vendor Palmer, who is the plaintiff in this action. Palmer was regularly cited, but made no appearance. Defaults were taken against him both by the plaintiff in the action, and by Wellington, the vendee, the first in March, 1844, and the second in February, 1845. The case came before this court in May, 1846, when a final judgment was rendered against Wellington for the delivery of the slave, and in favor of Wellington against his Warrantor, Palmer, for $500, the' price of the slave. 1 Ann. Rep. p. 72. The present defendant, Joseph H. Moore, subsequently purchased, at a sheriff’s sale, the judgment obtained by Wellington against Palmer, and caused a fieri facias to issuo thereon, the exe-> cution of which Palmer has enjoined in this action, on the ground that the' debt for which the execution issued existed previous to his discharge in bankruptcy.. On this ground the injunction was maintained in the court below,- and the defendant has appealed.
It appears that- Paltrier commenced his proceedings in bankruptcy on the 5th of August, 1842, and received his certificate of discharge on the 20th May, 1844, prior to the rendition of the-first judgment against him, and indeed prior to the entry of the decond default. His obligations as warrantor arose before he applied to be discharged as a bankrupt, and nothing before us shows that Wellington, to whose rights Moore has succeeded,.figured oh his schedule as a creditor, or had notice of his proceedings in bankruptcy. This discharge is relied on by the plaintiff as a complete bar to the debt. Moore, the present defendant, contends that Palmer could only have availed himself of his discharge in bankruptcy by pleading it in bat* of the original action, and this is the only question which the case presents.
The englis'Ir rule appears to be settled that, a Bankrupt who intends to avail himself of his certificate, will be required to plead it specially. 12 East. Rep. p. 667. 1 Chitty’s Pleading, p. 473. The necessity for pleading it under our system is equally imperative. The debtor, as has been correctly urged by the appellant’s counsel, is not more completely relieved by the effect of his discharge in bankruptcy, than he would be by an actual payment, which entirely extinguishes the debt. Yet in order to avail himself of the payment as a defence, it must be specially pleaded before final judgment. For by our settled jurisprudence an injunction will not issue to arrestan execution on grounds that might have been pleaded in defence before judgment. 1 Ann. Rep. 284. 8 La. 101. The plaintiff having failed to plead his discharge in defence in the original suit, cannot now avail himself of it as a means of arresting the execution of the judgment against him.
It is therefore ordered that the judgment of the District Court be reversed. It is further ordered that the injunction obtained by the plaintiff be dissolved; the plaintiff paying the costs of both courts-.-
