Page:Federal Reporter, 1st Series, Volume 5.djvu/273

 fLATT V. OOLB. 261 �tenance of the action or in bar generally, and it was decided in Harris v. James, 9 East, 8^, that under the statute of 5 Geo. II. e. 30, § 7, such a plea, in case of bankruptcy occur- ring before suit brought, but the discharge granted pending the action, might be pleaded in bar generally, and that the defendant should recover his costs. The statute in question, after providing for the discharge, declared that if the bank- rupt should afterwards "be arrested, prosecuted, or impleaded for any debt due before such time as he became bankrupt, he Bhould be discharged on common bail and might plead in gen- erai, " etc. It required a very f orced and ingenions construction to make this word "afterwards" refer to the bankruptcy instead of the discharge, but the court did give it that meaning. That case has been overruled in England; the judgcs, to be sure, Baying that though they did not understand its reasoning, that they should bave been bound to foUow it if the bankrupt law had not been changed. Jones v. Hill, L. E. S. 213, 230. The bankrupt law had not been changed in any essential par- ticular, so far as it bore on that case, but a slightly different collocation of the words made the meaning a little plainer, and the repeal and re-enactment of the law gave the court the technical opportunity to correct their former error. �Our statute, however, does not bave any such expression as "afterwards." It provides (Rev. St. § 5119) that it may be impleaded by a simple averment that on the day of ita date a discharge was granted ; setting f orth in full as a fuU and complete bar to ail suits brought on any such debts, claims, liabilities, and demanda; that ia, which might have been proved. The word "afterwards" is not here in connec- tion with suits brought. It might be supplied by construc- tion, but that ia quite different from dropping it by construc- tion. Section 5106 provides for continuing actions pending at the bankruptcy to give the defendant an opportunity to plead his discharge, and, for aught that I see, to plead it gener- ally. This right to a stay until the discharge is passed upon is precisely what the queen's bench, in Jones v. Hill, say waa not the law of England, though the chief justice thinks it •would be better if it were so, (see L. E. 5 Q. B, 234,) and was ����