Becker v. Whitehill

Robinson, J., delivered the opinion of the Court. In an action of assumpsit for goods bargained and sold, the appellee pleaded his discharge under the insolvent laws. To this plea, the appellant filed a replication of nul tiel record. The issue upon the replication was one solely for the determination of the Court, and depended entirely upon the record of proceedings in insolvency.

If the Court found upon an inspection of the record that the appellee had been discharged under the insolvent laws, the judgment should have been entered for the defendant, without any qualification. The discharge was a bar to the action. Being then an issue solely for the determination of the Court, we must in view of the Judge’s certificate treat it in this appeal, as having been decided by the Court, and not, as the appellant contends, submitted to the finding of the jury. Where the defendant pleaded his discharge under the insolvent laws, it was the practice under the Act of 1805 and its supplements, to enter the judgment for the defendant, subject to his discharge in insolvency, because property subsequently acquired by the insolvent in the manner prescribed by the Act, still remained liable in his hands ⁵⁷⁴ for the payment of antecedent debts.

By the Act of 1834, ch. 293, such property was vested in the trustee and not in the insolvent, and creditors were required to pursue their remedies against the trustee in the insolvent Court. Accordingly in State use of Buckey vs. Cutter, 18 Md., 418 , where the judgment was entered for the defendant, under a plea of discharge in insolvency, the plaintiff appealed, and contended that the judgment ought to have been entered subject to the defendant’s discharge under the insolvent laws. The Court, however held, that under the Act of 1834, the plea was a bar to the action, and the judgment was therefore properly entered for the defendant. Under the Code, Art. 48, “all