#### BALK v. HARRIS.

(Filed June 17, 1902.)

1. PLEADINGS — Supplemental—Puis Darrein Continuance — Judge-—Discretion.

Where a petition to be allowed to file a plea puis darrein continuance does not set forth facts which, if true, would he a bar to a recovery, its allowance is discretionary with the court.

2. PLEADINGS — Presumption—Supplemental Pleaaings — Puis Dar-rein Continuance — Judge-—Discretion.

Where a trial judge refuses to allow a plea puis darrein continuance, without assigning any reason, 'it will be presumed that, it was' refused as a matter of discretion.

ActioN by B. Balk against I. H. Harris, beard by Judge O. H. Allen, at May Term, 1901, of tbe Superior Court of' Beaueobt County. Erom a judgment for tbe plaintiff, tbe defendant appealed.

Small & McLean, for tbe plaintiff.

Chas. F. Warren, for tbe defendant.

Furches, C. J.

Tbis is an action commenced before a Justice of tbe Peace to recover $180, carried from tbe Justice’s Court to tbe Superior Court, and from that Court to tbis by successive appeals.

Tbis is tbe third time it bas stood upon tbe docket of this-Court for bearing and review of tbe Court below, and of tbis Court. Tbe opinion of tbe Court when it was first here is-reported in 122 N. C., 64, and tbe opinion when here tbe second time on petition to rebear is reported in 124 N. C., 467. 45 L. R. A., 257, 70 Am. St. Rep., 606. It bas been since-tried in tbe Superior Court, and is here again on appeal.

There is but one point presented in tbis appeal, if we ad*382here to our former opinion rendered on tbe petition to rebear. But we are nqw asked to abandon tbe ground upon wbiob tbat decision rests, and put tbe opinion in tbis appeal upon tbe ground stated in tbe first opinion, “tbat it may present a Federal question.” Tbis we can not do without reversing our judgment and adopting tbe arguments in tbe first opinion, wbicb we bave admitted were not tenable, and were expressly abandoned in tbe second opinion — 124 N. C., 467, 45 L. R. A., 257, 70 Am. St. Rep., 606.

Tbe other question presented by tbe record is an application by tbe defendant to' plead bis discharge in bankruptcy, wbicb was refused by tbe Court. At Spring Term, 1901, before tbe case was tried, tbe defendant presented to tbe Court tbe following motion in writing: “Tbe defendant, Isaac H. Harris, and L. B. Suskin, surety upon defendant’s undertaking to stay execution pending tbe appeal from tbe Justice of tbe Peace, respectfully represents tbat since tbis action has been pending in tbe Superior Court of Beaufort County, tbe defendant, Isaac H. Harris, has been adjudged a bankrupt, and has been discharged under tbe act of Congress from all debts and claims, wbicb are made provable by said act against "bis estate, and wbicb existed on tbe 7th of April, A. D: 1899'; that tbis defendant and bis surety pray tbat tbe defendant be permitted to’ plead tbe said discharge in bankruptcy as a defense and bar to tbis action.” Tbe Court, in refusing tbis motion, gave no reason for doing so, and tbe plaintiff contends tbat tbe Court refused to allow tbe motion as a matter of discretion; while tbe defendant contends tbat it was not a motion appealing to tbe discretion of tbe Court, and tbat be was •entitled to bave it allowed as a matter of legal right.

It has been often decided by tbis Court tbat tbe right to allow or refuse to allow an amendment, by setting up a new defense o>r otherwise, was a matter of discretion with tbe Court, •and while tbis discretion should be liberally exercised, tbat it *383was not reviewable on appeal to tbis Court. Clark’s Code (3d Ed.), Sec. 273; that it was discretionary whether the Court would allow an amendment setting up the statute of limitation, Smith v. Smith, 123 N. C., 229 ; though it is said in that case that there are some exceptions to' this rule. And while our attention has not been called to any authority directly upon this point, and in the limited time we have, we have not been able to put our hands upon any.

But it seems to us that “a plea since the last continuance” is not what would strictly be termed an amendment, but more in the nature of a supplemental pleading — something more than was pleaded before. Such pleas must be made by leave of Court, that is, they must have the sanction of the Court, and the opposing party must have an opportunity to be heard. This is and should be so, whether it is a matter of discretion with the Court or a right the party has to insist on its being filed as a matter of law.

It therefore seems to' us that in many cases, as in this case, the Court had the discretion to allow the defendant to file his answer setting up his new defense, and the plaintiff would have had no right of appeal. But the defendant, on the trial, would have been compelled to show that defendant’s discharge was a discharge from this debt under the Bankrupt Act. The Court may have had the discretion to allow this plea to be made, as that would not be a determination of the rights of the parties. But to entitle the defendant as a matter of law to file such plea, it must appear from the petition that the facts stated, if true, would be a good defense and a bar to the plaintiff’s action. The Court is to be the judge of this, and if the Court should hold that the facts set forth, if true, would not be a bar to the plaintiff’s action and refuse to allow the plea, when the facts alleged, if true, would be a bar to the action, this Court would review its action. But if the petition does not set forth facts which, if true, would be *384a bar to tb© plaintiff’s recovery, tben tbe Court is not bound to allow tbe plea to be filed; and if it is refused without assigning any reason, it will be presumed that it was refused as a matter of discretion, and this Court will not review its action. 21 Enc. Pl. and Prac., 59, and note 1.

We do not think tbe facts stated in this petition are sufficient to make it tbe duty of tbe Court, as a matter of law, to allow tbe plea. It does not state that tbe defendant has obtained bis discharge since tbe last continuance of tbe action r, nor does it show that this debt or claim of the plaintiff was scheduled in tbe bankrupt proceedings; nor does it show that tbe plaintiff bad knowledge of tbe proceedings in bankruptcy in time to have proved bis debt and shared in the distribution of tbe assets of tbe defendant’s estate in bankruptcy.

We do not see that tbe cases cited by tbe defendant are in point. Sanderson v. Daily, 83 N. C., 67, and Dawson v. Heartsfield, 79 N. C., 334, are applications to revive dormant judgments, and it has been often held by this Court that, in such cases as those, tbe defendant may plead anything that has occurred since tbe rendition of tbe judgment. Bank v. Swink, 129 N. C., 255. And tbe case of Paschal v. Bullock, 80 N. C., 329, was a motion to recall an execution that tbe defendant might plead bis discharge in bankruptcy; but tbe motion was not allowed, and, upon appeal to this Court, tbe ruling of tbe Court below was affirmed. And in tbe discussion of that case, it is observed by this Court that tbe defendant bad, before that, tbe opportunity to plead bis discharge, and did not do so-. It does not appear in this case that tbe defendant bad before bad tbe opportunity to plead bis discharge. But, as be is asking to plead what be does not have tbe right to do without tbe permission of tbe Court, we think, to make it tbe legal duty of tbe Court to allow tbe plea, it should have affirmatively appeared in tbe petition that be bad *385not bad' — that is, facts should have been stated showing that he had not before had such opportunity.

As we see no error, the judgment is

Affirmed.