#### Langley v. Lane.

~) V J From Randolph.

To a sci. fa. against bail, it was pleaded that thi taken by a ca. sa. and hid availed himself of. relief of honest debtors, and had been legallAdiscfaar was held bad on general demurrer, becausi Court’s jurisdiction in the discharge, nor d¡¡ during the continuance of the act of 1820. tinctly the kind of discharge relied on, which have been in two modes. It was also held bad show that the creditor had notice.

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 *314 Roy and others; and had, since the contracting and ex-.. istence of said debt, availed himself of the provisions of an act of the 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, Judge, presiding, sustained the demurrer, and defendant appealed from thf judgment rendered according to sci. fa.

Haywood, for the appellee.

In this plea there are several defects in substance, which may be taken advantage of on general demurrer.

It does not set forth at what time the principal was arrested and discharged under the act of 1820, which was repealed one year after it went into operation.

It does not set forth that the principal took the oath of insolvency at all, or that he was discharged as an insolvent debtor, but only that he was legally discharged from the ca. sa. under which he was arrested. In some way it must appear to the Court either that the debtor has made a bona fide surrender of his property, or that bona fide he has none to surrender, being insolvent; without one of these facts appears, the debtor does not come within the protection of the principle in our constitution applied in the cases of Burton v. Dickens, (3 Mnrph. 103.) and Jordan v. James, (3 Hawks.) Yet the discharge of a debtor from ai’rest may in a variety of cases be legal, without his taking the insolvent’s oath. It is not stated with sufficient certainty in the plea that the principal was discharged by a competent tribunal: it is not only necessary that the tribunal should be stated, but the plea should show also the Court’s authority and jurisdiction (Witte’s Rep. 416. 1 Johns. Rep. 91. 7 Jolms. Rep. 73.) And if a plea state that debtor was “ discharged according to statute” generally, it is bad on general demurrer. (2 Ld,-R,ay. 1262. 2 Balk. 5&1.)

*315.Lastly, the plea does not state that the principal was imprisoned at the instance of the present plaintiff, nor that he had notice under the act of 1820, which is expressly required by the act.

Taylor, Chief Justice.

The defence relied upon in this case, must necessarily be pleaded specially, 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 pleading, 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 of the subject matter, and that they discharged the insolvent, every thing 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. The act of 1820, ch. 1067", authorizes a discharge as an insolvent only in those cases wherein the defendant is arrested after the first day of January 1821, and as this act was repealed at the ensuing session of the legislature, no person could he 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 cir-eumstance 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. dis*316charge the Court acted properly. It is a rule in pleading, that every plea must bo so pleaded as to be capable of trial, and therefore must consist of matter of fact, the existence of which may be tried by a jury, or its sufficiency as a defence may be determined by the Court on demurrer, 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 hare 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, (sec. 1.) which would be a legal discharge, in addition to the one under the 4th section, 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 in-tendments shall be taken most strongly against the defendant. (Co. Lit. 303 6.) Without noticing the other defects in the plea, it appeal’s 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.

Hah, Judge, assented.

Henderson, Judge.

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 substantialhj stated in the declaration, so the plea must in substance contain every fact necessary to create *317or form the discharge. The defect is, that the plea does not state that this creditor had notice. Possibly every J J 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 re-pleader, 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 here, 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 *318while the record was under the control of the Court. The demurrer must be sustained, however reluctantly,- and judgment given for the plaintiff.