
    
      James Preston vs. William F. Simons.
    
    A plea, of action commenced within twelve months after defendant’s discharge under the insolvent debtors Act, is a plea in abatement.
    A plea of discharge in bankruptcy need not set out the proceedings in bankruptcy, nor the court in which defendant obtained a certificate and discharge.
    Such plea may conclude to the country.
    If a plea in abatement and a plea in bar are filed together, the first is overruled and superseded by the second.
    
      Tried in the City Court of Charleston, November Term, 1844.
    The following is the report of the Recorder.
    “This was an action of assumpsit brought to recover $468 85, on notes, checks and moneys lent. The questions in the case arose entirely on the state of the pleadings. The Pleas were, 1st — an arrest of defendant at the suit of one W. Enston; a petition filed on the 6th June, 1843, for the benefit of the insolvent debtors’s Act; a compliance with the requisites of that Act, and that on the 23d October, 1843, defendant was admitted by the Judges of the Court of Common Pleas to the benefit of that Act, and that plaintiff commenced his action within the time within which defendant was privileged from suit by the Act — to wit, on the 19th December, 1843. Judgment was prayed', if the plaintiff ought to have or maintain his action against defendant.
    2d. Plea — non-assumpsit, on which issue was joined.
    3d. Plea — a discharge in bankruptcy — that before the commencement of this suit, to wit, on the 5th December, 1842, at Charleston, in the State aforesaid, the defendant became a bankrupt, within the true intent and meaning of the Statute then in force concerning bankrupts ; and that defendant, on 27th May, 1843, procured his discharge and certificate from all debts then due at Charleston aforesaid, in pursuance of the provisions of the Statute aforesaid; and that the said ’ supposed cause of action in the declaration mentioned, did accrue to the plaintiff before defendant became a bankrupt as aforesaid; with a-conclusion to the country.
    To this plea there was a demurrer filed by plaintiff, as follows that the matters contained in the plea are not sufficient to bar or preclude plaintiff from his action, and that plaintiff is not bound, by law, to answer the same; and plaintiff states and shews to the court the following causes of demurrer.
    1st. That the said third plea does not set out the proceedings in bankruptcy, nor the court in which the defendant is alleged to have obtained his certificate of bankruptcy and discharge from all debts due.
    2d. That the said third plea concludes to the country, instead of with a verification; and also that the said third plea is, in other respects, uncertain, informal and insufficient.
    To this demurrer, a joinder was' put in.
    At the call of the cause on the docket for trial, Mr. Yeadon moved the court to strike out the first plea, as a plea in abatement, and inconsistent with, and overruled or superseded by, the pleas in bar.
    This motion and the demurrer were fully argued by Mr. Yeadon, for the plaintiff, and Mr. Hunt and Mr. Kunhardt, for the defendant.
    I held that the plea was to be regarded as a plea in bar, and not in abatement, and refused the motion to strike out.
    On the demurrer to-the third plea — it appeared to me to be a special demurrer, in which certain specified causes of objection were assigned.
    The plea is copied from the 'form in 3 Ch. PI. 911, with the addition of the averment of the certificate and discharge in bankruptcy. The ’form has been invariably adopted in England, in cases where the discharge was obtained prior to the commencement of the action. See note 1 to 3 Ch. PI. 912. It is founded upon the provisions in the Statutes of Bankruptcy; 4 Ann, ch. 16, sec. 4 ; 5 Geoge II, ch. 30, sec. 7, which declare “that the defendant may pLead in general, that the cause of action accrued before the time of bankruptcy, and niay give the Act and the special matter in evidence, and.the certificate of such bankruptcy shall be allowed to be sufficient evidence of such bankruptcy, unless the plaintiff can prove the certificate was obtained unfairly and by fraud.” British Statutes at Large, 6 vol. p. 99.
    These provisions have been continued to the present time in England.
    By the 6 George IV. ch. 16, sec. 126, it is enacted that “for any debt proveable under the commission, the bankrupt may plead in general that the cause of action accrued before he became bankrupt, and may give the Act of Parliament and the special matter in evidence ; and such bankrupt’s certificate, and the allowance thereof, shall be sufficient evidence of the trading, bankruptcy, commission, and other proceedings precedent to the obtaining such certificate.” Ch. on Con. 671.
    This plea in England concludes to the country, and is called the general plea in bankruptcy; 1 P. W. 259; 10 Mod. 160, 217; B Ch. PI. 913 ; (in notes) Lilly’s Entries, 107; 6 Bing. 686.
    To the general plea of bankruptcy, the plaintiff has merely to add the similiter, under which he may shew any special matter, proving the invalidity of the certificate, or defeating or avoiding its operation, either in respect of the grounds mentioned in the Act, or on account of fraud; Ch. on Con. 673.
    The plea given by the statute opens the whole matter of the question in evidence on both sides ; 1 Cooke’s Bankrupt Law, 529.
    If the defendant has not conformed to the Act, as the statute has directed the general pleading, it is matter of evidence. Havilcmd vs. Cook, 5 T. B,. 655; Alsop vs. Price, Dong. 160.
    In the Act of Congress of 1841, to establish a uniform system of bankruptcy throughout the United States, by the 4th section it is declared that “such discharge and certificate, when duly granted, shall, in all courts of justice, be deemed a full and complete discharge of all debts, contracts and engagements of such bankrupts, which are proveable under this Act, and shall and may be pleaded as a full and complete bar to all suits brought in any court of judicature whatever, and the same shall be conclusive evidence of itself in favor of such bankrupts, unless the same shall be impeached for some fraud or wilful concealment by him of his property, or rights of property, as aforesaid, contrary to the provisions of this Act, on prior reasonable notice specifying in writing such fraud or concealment.” Owen on Bankruptcy, Appendix 54.
    On this examination of the corresponding sections of the English statutes and the Act of Congress on bankruptcy, it appeared to me that the effect of the certificate and discharge is substantially the same under both laws, and that Congress, having the Acts of Parliament before them, and the mode of pleading the discharge so established, intended to adopt the general issue in bankruptcy on causes of action barred by the discharge and certificate, as practised for more than a century in England. Such object was consistent with the leading design of pleadings, as used in the Courts of the States of the Union — a concise system divested of unnecessary prolixity., It appeared to me a confirmation of this view, that by the Act of Congress the discharge can be impeached for fraud or wilful concealment of property contrary to thé Act, on prior reasonable notice, specifying, in .writing,-some fraud or concealment. This is conformable to the practice' adopted in New York, and other of the more populous States, of pleading the general issue, with written notice of the grounds of special defence.
    The plea filed by the defendant, thirdly, I regarded as liable to objections, under the rules of technical criticism, for want of precision in detail, but left the question open for consideration, whether it was sufficiently accurate and substantial. The Act of Congress was passed within the constitutional powers of Congress, and is as obligatory on all courts of judicature in the United States, as a statute of the State Legislature ; and I held that the Judges of all the courts are bound, officially, to notice the tenor of the Bankrupt Law, as a public and general law.
    A plea in bar must be certain — “certainty to a common intent, i e, that the matter be clear enough, according to the natural sense of the words used, is sufficient,” in a plea in bar; 1 Ch. PL 566.
    Public statutes, and the facts which they recite or state, must be noticed by the courts without their being stated in pleading, and it is only necessary to state facts which will appear to the court to be affected by the statute ; 1 Ch. PL 247.
    Every court is bound to take notice, judicially, of its own course of proceedings, and of those of other superior courts ; 1 Ch. PL 251.
    Where the declaration did not shew out of what court a writ of Latitat issued, the court said that there being no writ properly called a Latitat, but what issued out of the King’s Bench, the declaration was sufficient; Ld. Ray. 397.
    The courts of Westminster will notice courts of general jurisdiction, and the course of proceedings there ; and they also notice the jurisdiction of the courts of the counties palatine ; 1 Ch. Pl. 252 ; 1 Ld. Ray. 154; 1 Saund. 73; Cro. Eliz. 502; Cro. Car. 179.
    The Judges are bound to take judicial notice of the contents of the Acts of Parliament, that they may have a knowledge of them themselves, and communicate it to others. Public Acts are binding upon every subject, because every subject is, in judgment of law, privy to the making of them, and, therefore, is supposed to know them ; King vs. Sutton, 4 M. & S. 542.
    In the present case, the first objection taken to the plea by the special demurrer is, that it does not set out the proceedings in bankruptcy, nor the court in which the defendant was discharged. Now the plea avers, that before the commencement of the suit, to wit, on 5th December, 1842, at Charleston, in the State aforesaid, the defendant became a bankrupt within the true intent and meaning of the statute then in force concerning bankrupts, and that defendant, on 27th May, 1843, procured his discharge and certificate from all debts then due at Charleston aforesaid, in pursuance of the provisions of the statute aforesaid. In my opinion, the courts of this State are bound to take judicial notice of the course of proceedings under the Act of Congress to establish a uniform system of bankruptcy.
    
      It is a part of these proceedings', that the discharge and certificate can only be obtained in one of the Federal District Courts of the United States. It is a part of the Acts of Congress which our Judges are judicially to notice, that there is but one Federal District Court for South Carolina, and that such court is held at Charleston. The third plea alleges that the proceedings in bankruptcy were had at Charleston, in the State of South Carolina. This I regard as sufficiently certain to shew that the proceedings were had in the Federal District Court for South Carolina, held at Charleston, and that the certificate and discharge in bankruptcy were there obtained.
    The plaintiff’s counsel contended thatihe words in the plea, “statutes then in force,” were fatally defective, and by intendment of law would be construed to apply to an Act of the General Assembly of the State. ■
    In answer to this objection, it appeared to me that the subject matter of the plea, the allegation of the bankruptcy, certificate and discharge, rendered it certain, to a common intent, that the statute referred to was an Act of Congress ; besides, the word “statute” itself is nomen generalissi-mum.
    
    The order made by the court was, that the demurrer be overruled, with leave granted to the plaintiff to withdraw the demurrer, and reply to the third plea.”
    The plaintiff appealed, and now moved the court to reverse the decision of the Recorder, on the grounds,
    1. Because the first plea is a plea in abatement.
    2. Because the demurrer should have been sustained for the causes assigned.
    
      Yeadon, for the motion.
    
      Hunt and Kunhardt, contra.
   Curia, per

O’Neall, J.

The court thinks the first plea a plea in abatement, and, therefore, bad as pleaded. Yet, as the court thinks the third plea good, and well pleaded, and after being pleaded and sustained, the defendant, even if he should fail in verifying his third plea, cannot recur to his first, inasmuch as his pleas in bar supersede or overrule the plea in abatement, being pleaded out of and in advance of their legal order, it is unnecessary further to notice it. Upon the third plea, the court concurs in the judgment of the Recorder, and is glad to have it in its power to refer to his excellent argument in support of his judgment below, for the reasons of the dismissal of the motion here.

The motion to reverse the Recorder’s decision is dismissed.

The whole court concurred.  