Lerian v. Rohr

Miller, J., delivered the opinion of the Court. This action of assumpsit was brought by the appellee against the appellant on the 8th of July, 1884, in the Circuit Court for Baltimore County. The defendant pleaded that on the 21st of June, 1879, he was by the same Court adjudged .an insolvent debtor, and discharged as such from all debts and contracts made before the filing of his application. To this plea there was a replication of nul tiel record, and upon the trial of this issue before the Court the defendant offered in evidence the docket entries in the matter of his application for the benefit of the insolvent laws entered on the insolvent docket of the Court, together with the original papers in the insolvent proceed-, ing, but the Court refused to receive them in evidence and gave judgment for the plaintiff on the issue thus joined.

The defendant excepted to the ruling excluding these docket entries and original papers as evidencing the discharge, and this is the only matter presented for review by this appeal. The application in insolvency having been made in the same Court in which the issue of nul tiel record was on trial, it was not necessary to produce a formal record of the insolvent proceedings. All. that it was incumbent upon the defendant to do was to have the docket entries and original papers laid before the Court for its inspection, and if these showed his final discharge, his plea should have been sustained. The docket entry in this respect is as follows: “June 21st, 1879, certif. pub. notice filed, same day petitioner finally discharged;” and on the original petition there is this endorsement signed by the clerk: “Petitioner discharged June 21st, 1879, by order of Court.” ⁹⁷ The presumption from the docket entry itself is that the Court while in session, ordered the discharge, and that the clerk made the entry thereof at the time in open Court, in the presence and under the eye and direction of the J udge, in tire same manner as similar entries in other lato cases are made.

We understand that the learned J udge of the Court below made the ruling excepted to, on the ground that there appeared to be no formal order of discharge written out and signed by the Judge or Judges sitting at the time 'the discharge was ordered, but this was by no means essential to its validity. The proceedings in insolvency are on the law side of the Court, and there was no provision of the insolvent laws then in force requiring such formal orders to be signed by the Judges. It is true, a practice to that effect may have prevailed in some of the