Shawe v. Wilmerden

Headnote

if a defendant, after pleading the general issue, obtain his discharge under the insolvent law, and his attorney, by mistake, serve a notice of giving it in evidence at the trial, the court will in a stale cause give leave, on payment of costs, to strike out the notice and plead the special natter, as a plea puis darrein continuance, but then the plaintiff will be at liberty to discontinue without costs.

After pleading the general issue, the defendant obtained his discharge under the insolvent law. His then attorney, who had long since declined business, gave notice that he would give this special matter in evidence. The action being now again proceeded in, application was made for leave to strike out the notice, and -plead the discharge, as the mistake of the attorney formerly employed was the reason why it was not before done.

The known rule is, that an insolvent must plead his discharge. In the present case it ought to *have beenywis darrein continuance. It is a defence stricti juris, and not to be favored.