Hayes v. Flowers

25 Miss. 169

• Court: Mississippi Supreme Court
• Decided: October 15, 1852
• Status: Published

Opinion

Mr. Justice Fisher

delivered'the opinion of the court.

This is a writ of error to a judgment of the circuit court of Smith county.

The defendant below pleaded that he had been, by the judgment of the district court of the United States, held at Jáckson, in this State, discharged from the note sued on. To this plea the plaintiff filed a demurrer, which was sustained by the court.

The act of'Congress of the 19th of August, 1841, (Laws of U. S. vol. 5, p. 444,) says, that “ such discharge and certificate, when duly granted, shall in all courts of justice be deemed a full and complete discharge of all debts, contracts, and other engagements of such bankrupt, which are provable under this act, and shall and may be pleaded as a full and complete bar to all suits brought in any court of judicature whatever, and the same shall be conclusive evidence of itself in favor of such bankrupt, unless the same shall be impeached for fraud,” &c.

To constitute a good plea in bankruptcy it is necessary to aver, that the claim sued on was one provable under said act, that the defendant had been discharged by-the judgment of the proper court, and had received a certificate of such discharge.

The law makes the discharge and certificate the bar to the action.’. That which constitutes the bar must be pleaded. The certificate is not pleaded in this instance, and, therefore, the plea is defective.

The court, however, erred, in not rendering judgment of respondeat ouster, and for this error the judgment must be reversed.

Judgment reversed, and judgment respondeat ouster rendered.