Opinion
December Term, 1824.
To a sci. fa. against bail it was pleaded that the principal had been taken by a ca. sa., and had availed himself of the act of 1820 for the relief of honest debtors, and had been legally discharged. The plea was held bad on general demurrer, because it did not show the court's jurisdiction in the discharge, nor did it show that it was during the continuance of the act of 1820, nor did it specify distinctly the kind of discharge relied on, which under a ca. sa. might have been in two modes. It was also held bad because it did not show that the creditor had notice.
APPEAL from Norwood, J., at RANDOLPH.
Haywood for appellee.
Sci. fa. against bail. The only question involved in this case arose upon a plea by the bail and demurrer thereto.
The bail pleaded that the principal, since the contracting and existence of the debt for which he was sued and for which defendant had become bail, had been taken upon several writs of ca. sa. at the instance of Gilbert Roy and others; and had, since the contracting and existence of said debt, availed himself of the provisions of an act of the (314) General Assembly entitled "An act for the relief of honest debtors," passed in 1820, and has been legally discharged from the said writs of ca. sa. Demurrer and joinder.
The court below, Norwood, J., presiding, sustained the demurrer, and defendant appealed from the judgment rendered according to sci. fa.
The defense relied upon in this case must necessarily be pleaded (315) specifically, for there is no provision in the act to authorize the defendant to give it in evidence on the general issue. Although the ancient strictness of pleading is dispensed with in our practice, yet when the defects of a plea are submitted to the consideration of the court upon a demurrer, they can be decided on only according to the principles and rules of pleadings, and these are less rigorous when applied to a plea of this sort than to most others; for if enough is set forth in the plea to show that the court had jurisdiction for the subject-matter, and that they discharged the insolvent, everything will be intended in support of their judgment; and they will be presumed to have judged right, unless the contrary appears from the record. But this plea is substantially defective in not setting forth matter sufficient to show that the court could entertain jurisdiction of the subject. Laws 1820, ch. 1067, authorizes a discharge as an insolvent only in those cases, wherein the defendant is arrested after 1 January, 1821, and as this act was repealed at the ensuing session of the Legislature, no person could be properly discharged but during the time while it continued in force. The plea only states that the principal was discharged since the contracting and existence of the debt sued for; but it ought to be distinctly set forth that he was arrested and discharged at a period while the act was in force; otherwise we cannot perceive that the court had any jurisdiction of the matter. If this essential circumstance appeared in the plea; it would be unnecessary to state the other facts leading to the discharge, for we should be bound to presume that in ordering the discharge the court acted properly. It is a rule in pleading that every plea must be so pleaded as to be capable of trial, and, (316) therefore, must consist of matter of fact, the existence of which may be tried by a jury or its sufficiency as a defense may be determined by the court on demurer, or of matter of record which may be tried by the record itself. 1 Chitty, 520. If, therefore, a fact be complicated with matter of law so that it cannot be tried by either court or jury, it is bad. The plea states that he was legally discharged from the arrest; but this cannot be tried by the jury, nor can the court determine whether he in fact was discharged, and the plea should have stated the material facts which preceded the discharge. The plea is also exceptionable in not specifying distinctly the discharge relied upon, for the act makes it lawful for the sheriff to discharge from the ca. sa. upon a bond being tendered (section 1), which would be a legal discharge in addition to the one under section 4, upon the oath being administered. As it is a natural presumption that the party pleading will make as favorable a statement as possible for himself, it is a rule of construction that a plea which has two intendments shall be taken most strongly against the defendant. Co. Lit., 303b. Without noticing the other defects in the plea, it appears to me that these are so substantial as to be availed of on general demurrer, which ought, therefore, to be sustained and judgment rendered for the plaintiff.
HALL, J., assented.
After making every allowance growing out of our loose manner of pleading, which we are almost compelled to make in order to reach the justice of the case, I believe this plea cannot be supported; for as every fact necessary to create the charge must be substantially stated in the declaration, so the plea must in substance contain every fact necessary to create or from the discharge. The defect is that the plea does not state that this creditor had notice. (317) Possibly every other defect might be gotten over. In strictness the plea should state when and show how he was discharged; the time when, that it might be perceived that it was at a period when the act of 1820 was in force, for it was repealed in 1821; and the manner how, that the Court might see, by comparing it with the provisions of the act, that it was within these provisions. But it only says that he was duly discharged under the act. This mode of pleading draws the examination of the law from the court to the jury, but upon the trial of the issue in supporting the averment duly discharged the points would come under examination, and the court could instruct the jury upon the law of the case. But, sitting in a court of original jurisdiction, I would prefer awarding a repleader that the facts might be stated; but this Court, as a revising court, cannot award one, that being matter of discretion; and we have no control over the discretion of the court below; we must take the record as we find it. The want of this power might possibly induce the Court to support the plea if there were no other defects. But I cannot see how the want of notice can be gotten over; for the principal may be very properly and duly discharged from an imprisonment at the instance of another creditor to whom he had given notice, and yet the discharge affect not the rights of this creditor. For on that fact, to wit, notice, depends the efficacy of the discharge as to this creditor. By the express provisions of the act the plea may, therefore, be true in every part, and the utmost extent be given to the meaning of the words duly discharged under the act, and yet not in the least affect the rights of this creditor. If the fact be that he had notice, the defendant should have moved in the court below to be permitted to amend his plea to replead, and leave would have been granted, even after argument of the demurrer upon terms, or at any time while the record was under the control of the court. The demurrer must be sustained, however (318) reluctantly, and judgment given for the plaintiff.
PER CURIAM. Affirmed.