
    James Atkinson vs. John W. Fortinberry.
    Although the proceedings in causes brought from justices of the peace to the circuit court are de novo and can be conducted without any pleadings whatever; yet if the parties undertake to conduct and carry on the cause by the means of pleadings in writing, they will be held to the rules of pleading.
    A plea of bankruptcy, which sets forth that, after the making of the promise sued on, the defendant became a bankrupt within the meaning of the statute of bankruptcy, but which sets out no discharge under the law, is bad.
    Where a plea has been filed and a demurrer to it sustained, and under the judgment respondeat ouster, and the plea filed, the demurrer to which is overruled by the court below but sustained on appeal by this court, the judgment of this court will be quod recuperet.
    
    On appeal, from the Marion circuit court; Pión. Yan Tromp Crawford, judge.
    James Atkinson sued John W. Fortinberry, before a justice of the peace, on a promissory note for seven dollars and thirty-one cents.
    The justice of the peace gave judgment for the plaintiff, and the defendant appealed to the circuit court of Marion .county. At the October term of the court, 1843, the plaintiff formally declared upon the note, and the defendant plead. The case came on for trial at the April term, A.D. 1844, of the court, but the jury were unable to agree, and were discharged.
    The defendant then obtained leave to amend the pleadings generally, and the cause was continued.
    At the October term, 1844, the defendant filed the following amended plea:
    
      James Atkinson, Jun. &c. 2 Iq the 0ircuit 0ourt of Marion . f County to October term, 1844. John W. Fortinberry. ) 1
    
    And the said defendant, by his attorneys, comes and defends the wrong and injury when, &c. and says that the said plaintiff ought not to have or maintain his aforesaid action thereof against him, because he says that after making of the said several supposed promises and undertakings, in the said declaration mentioned, to wit, on the 20th day of February, A.D. 1843, he the said defendant became and was a bankrupt, within the true intent and meaning of the statute then in force establishing a uniform rate of bankruptcy throughout the United States, approved August 19th, 1841, and that the said supposed causes of action in the said declaration mentioned, if any such there be, and each of them, did accrue to the said plaintiff before the said defendant so became a bankrupt as aforesaid, and of this he the said defendant puts himself upon the country,” &c.
    To this plea, the plaintiff demurred, and issue being joined on the demurrer, the court sustained it, and gave judgment that the defendant answer over.
    The defendant then answered over, by pleading the same plea as before, except that it was entitled “ James Atkinson v. Fortinberry, Jr. Marion circuit court at the October term, 1844, (amended plea.) ”
    The plaintiff then demurred to this last amended plea, and assigned the following causes :
    1. Said plea does not show that the said defendant was discharged by a decree in a bankrupt court.
    2. Said plea does not show in what court the said defendant became a bankrupt.
    The court (issue being joined on demurrer) overruled the demurrer.
    The plaintiff was then allowed to join issue on the plea, and a jury being empanelled, decided the issue of fact in favor of the defendant, and the circuit court gave final judgment thereon.
    The plaintiff appealed.
    
      Azel Backus Bacon, for appellant.
    1. The defendant below was not compelled to submit his de-fence under formal and written pleas, but having done so, is-bound by them. It has been decided by this court, in a late decision which I have not now before me, that an administrator, although not bound to plead specially, is bound by his plea should he choose to take that course. So in this case, if the defendant chose to plead formally when he was not compellable to plead at all, he is bound by the plea so pleaded, and must answer a demurrer for even technical defects and such as are demurrable specially alone. The defects in the plea first demurred to in this case in the allegation of venue, in failing distinctly to confess while it avoided the plaintiff’s action, and in concluding an allegation of new matter to the country, were technical defects; but the plaintiff, by the course of the defendant, became entitled to take advantage of these technical errors. The court then rightfully sustained the first demurrer. But the plea pleaded by defendant after judgment, quod respondeat ouster, contained the self-same defects, and was equally liable to demurrer. It is difficult to see how the court could have failed to sustain the second as well as the first demurrer.
    2. The plea first demurred to in this case was, at least, de-murrable for matter purely and entirely of substance. The defendant had chosen to embody his defence in one plea; a plea, too, which he had amended in order to make it sufficient and right, and if that defence was not sufficient in law to bar the plaintiffs’ action, he must submit to judgment. The de-fence thus set up was insufficient, because in his plea of bankruptcy he did not allege that the plaintiff’s demand was provable under the bankruptcy, and this cause was specially alleged under the first demurrer of plaintiff. The bankrupt law, section 4, expressly declares that the certificate of discharge by the bankrupt court, shall be pleadable in bar, only when the “ debts, contracts and other engagements of such bankrupt,” are “provable under this act.” And this is expressly asserted in the leading case of Sachet v. Andross, 5 Hill’s N. Y. Rep. 327.
    The first demurrer then was most correctly sustained. But the plea pleaded after judgment quod respondeat ouster, contained the same defect. It should likewise therefore have been sustained and judgment quod recuperet given.
    
      3. The special canses assigned under the second demurrer, were amply sufficient to sustain. The mere being a bankrupt, gave no discharge. The most extended signification given to the word bankrupt, that of one who is broken, would convey no such meaning. The bankrupt law permits the “ discharge and certificate” only to be pleaded in bar of claims provable under the bankruptcy. See sect. 4, of bankrupt law. Sachett v. Andros, 5 Hill’s N. Y. Rep. 327.
    The court, in which the discharge was had, should also have been specially set forth in the plea. For the want of this alone the plea was so grossly uncertain, that it was next to impossible for the plaintiff to understand upon what precise ground the defence was predicated. S. C. 5 Hill.
    Numerous other defects are apparent on the face of the record, but these are sufficient, it is conceived. The judgment of the court below should have been quod recuperet on the second demurrer.
    
      W. P. Harris, for appellee.
    The questions to be determined are those raised by the demurrer to the defendant’s plea.
    The pleader, in the absence of any settled practice in regard to the mode of pleading a discharge under the late bankrupt law of the United States, seems to have followed the form sanctioned by the English courts, under the bankrupt act of George 4th. The effect of a discharge in bankruptcy is substantially the same under both acts, and the same efficacy is given to the certificate which under the English statute has been held to be evidence in itself of all the proceedings which preceded it.
    Independent of any statutory provision prescribing the form and substance of the plea, a familiar rule of pleading, taken in connection with the true effect of the bankrupt law of the United States, would, it is thought, lead to the adoption of such a plea as the one resorted to in this instance.
    As the certificate is the evidence under any form of pleading, it is certainly unnecessary to encumber the record with any
    
      allegations which are not legitimately proved by it. The allegation that the party became a bankrupt within the true intent and meaning of the act, is proved substantially by the certificate, is really averring what constitutes the defence to the action, and includes necessarily all the facts which the case in 5 Hill, 327, requires to be set forth in detail in the plea.
    It is not easy to perceive the necessity of alleging in the plea, that the debt sued on was provable under the commission. The declaration declares the character of the debt. Whether a debt is or is not provable under the commission, is a matter of law for the court to determine, and that question is presented on the face of the declaration in which the character of the debt is set forth.
    Aside, however, from these questions, it is insisted, on the part of the defendants in error, that they are not held to the strictness of pleading in a case brought to the circuit court from the magistrate’s court. 1 S. & M. 385.
   Mr. Justice ThacheR

delivered the opinion of the court.

Appeal from Marion county circuit court.

The plaintiff sued the defendant before a justice of the peace of the proper county, and recovered a judgment, whereupon the defendant appealed to the circuit court. In this court the plaintiff filed his declaration upon the note which constituted the foundation of the action, to which declaration the defendant filed a plea, which, upon demurrer, was held to be bad, and respondeat ouster awarded. Un,der this leave to plead over, the defendant again plead, and to his second plea the plaintiff demurred, and this demurrer was overruled. The second plea is designed as a plea of bankruptcy and discharge under the general bankrupt law. The plea set forth that after the making of the several supposed promises and undertakings in the declaration, the said defendant became a bankrupt within the meaning of the statute of bankruptcy, but sets out no discharge under said law. The plea was certainly insufficient and bad in not setting out a discharge under the bankrupt law, and should have been so held under the demurrer'. Upon a judgment, sustaining the demurrer, the plaintiff would have been entitled to a judgment as for want of a plea. Harrison et al. v. Balfour, 5 S. & M. 301.

It is true, that the proceedings in causes brought from justices of the peace to the circuit court are de novo, and can be conducted without any pleadings whatever; but if the parties undertake to conduct and carry on the cause by the means of pleadings in writing, they will be held to the rules of pleading.

Judgment reversed, the demurrer to the second plea in the action directed to be sustained, and a judgment for the plaintiff in error quod recuperet, also directed to be entered in this court, the same being the judgment which the court below should have given.  