Travis et al. v. Glasier. erly pleaded, the court will not dismiss the matter in this summary way. Cur, adv. vult. RITCHIE, C. J., now delivered the judgment of the Court. This was an application to discharge the defendant out of the custody of the sheriff of St. John, on filing common bail in this suit, and that the bail bond entered into should be cancelled, on the the ground that since the debt for which he had been arrested was contracted, he had become bankrupt and his estate sequestrated under the "Bankruptcy (Scotland) Act, 1856;" and that he was subsequently discharged from all debts contracted by him prior to the date of the sequestration. The arrest took place upon a bond given by the defendant dated the 7th July, 1866. The defendant became bankrupt, and his estate was sequestrated on the 10th November, 1868, and he obtained his discharge under the Act on the 1st February, 1869, having compromised with his creditors. By Sect. 140 of the Act (19 and 20 Vict. cap. 79), the Lord Ordinary or sheriff is anthorized, on being satisfied by the oath or declaration of the bankrupt that he has made a full and fair surrender of his estate, and has not granted or promised any preference or security, or made or promised any payment, or entered into any secret or collusive agreement or transaction to obtain the concurrence of any creditor to his offer of composition, to pronounce a deliverance discharging the bankrupt of all debts and obligations contracted by him, or for which he was liable at the date of the sequestration. By Sect. 174, all deliverances under the Act purporting to be signed by the Lord Ordinary, or by any of the Judges of the Court of Session, or by the sheriff, shall be judicially noticed by all Courts and Judges in England, Ireland, and Her Majesty's other dominions, and shall be received as prima facie evidence, without the necessity of proving their authority or correctness, or the signatures appended, or the official character of the person signing. We think that in accordance with the practice in similar cases under the English Bankrupt Acts, the defendant is entitled to his discharge. It is said in 1 Chit. Arch 117, "that if the bankrupt obtain his certificate, and be afterwards arrested for any debt provable under his commission, upon application to a Judge at chambers, or to the Court, he will be discharged out of custody on entering an appearance; unless it appear that the certificate has been obtained by fraud, or that there are good grounds for disputing its validity, in which case the Court or Judge will not interfere, but will leave the defendant to plead his bankruptcy and certificate." Travis et al. v. Glasier. It was admitted by the defendant's counsel on the application, that if there had been an affidavit by the plaintiff that he intended to dispute the defendant's discharge on the ground of fraud, this application could not succeed; but there is no affidavit by, or on behalf of the plaintiff, of any intention to dispute the defendant's certificate, therefore we think he is entitled to be discharged on entering a common appearance in the suit. TRAVIS et al v. GLASIER. OCTOBER 29, 1870. Where no stamps were affixed to a promissory note when made, and only stamps sufficient for single duty affixed when produced at the trial, it was held to be void under 31 Vict. cap. 9. Where at the trial, the Judge ruled that the plaintiff could not recover, an application to have a nonsuit entered at the close of his argument on a rule nisi for a new trial was held to be too late. This was an action of assumpsit by the indorsees against the makers of three promissory notes, made August 15th, 1868, tried before WELDON, J., at the St. John Circuit. One of the defendants proved that when the notes were made and handed over, there were no stamps affixed, and that he did not know by whom the stamps on the notes were affixed. The notes when produced had stamps to the amount of single duty only. The learned Judge told the jury that he thought the notes were void, the stamps of the proper value not having been affixed when the notes were made, and stamps to the amount of double the duty not being affixed to them when produced at the trial, as required by 31 Vict. cap. 9. Verdict for defendant. A rule nisi having been obtained for a new trial on the ground of misdirection. Tuck, Q. C., showed cause on a former day in this term, and S. R. Thomson, Q. C., was heard in support of the rule. Cur. adv. vult. RITCHIE, C. J., now delivered the judgment of the Court. This was an action of assumpsit upon three promissory notes, all of date 15th August, 1868. On the trial it was proved by the defendant who made the notes, that when made and handed over, Vittum v. Stevens. no stamps were affixed to either note. That he gave no authority to any one to affix stamps, and that he did not know when or by whom the stamps the notes bore when produced on the trial were affixed, and this evidence was not attempted to be controverted. The notes on the trial had stamps of single duty only. The learned Judge was of opinion they were void, as stamps of the required duty were not affixed at the making of the notes, as provided by the 10th section of Dominion Act 31 Vict., part 1st, cap. 9, and that they were not within the saving clause provided by the 11th section on payment of single duty, that section expressly requiring payment of double duty for that purpose, and so directed the jury, and we think this direction was correct. By the second section of Dominion Act, 33 Vic., cap. 13, it is provided that it shall not apply to any suit pending when it comes into operation. The plaintiff's counsel at the close of his argument of the rule nisi asked that a nonsuit might be entered. We think the plaintiff, finding the opinion of the learned Judge on the trial was adverse to his right to recover, should then have applied to have a nonsuit entered, and that it is now too late for entertaining this request. The defendants offered evidence of defence on the merits, which it is unnecessary now to discuss. Rule discharged. VITTUM V. STEVENS. OCTOBER 29, 1870. Where notice of trial has been given, matter of defence which arises in vacation should be pleaded before the end of the term next following. Notice of trial was given for October 26. The defendant obtained a certificate of discharge under the United States Bankruptcy Laws, September 23rd. He pleaded Bankruptcy puis darrein continuance, which was delivered to plaintiff's attorney October 21st, and filed October 26th. The case was tried October 30th, and verdict for plaintiff. In answer to an application to set aside the verdict, and for leave to plead nunc pro tunc, it appeared by affidavits that the certificate was obtained by fraud. Held, An answer to the application. C. H. B. Fisher in Hilary Term last, on behalf of the plaintiff, moved to set aside the verdict in this case on the ground of irregularity. From the affidavits read in support of the motion, it appeared that notice of trial was given on the 28th day of May then last past for York October sittings; that on the 23rd of September the defendant obtained a certificate of discharge under an Act of Congress of the United States of America, entitled "An Act to establish a uniform system of Bankruptcy throughout the United Vittam v. Stevens. States;" that on the 21st October, a copy of a plea of bankruptcy puis darrein continuance was served on the plaintiff's attorney, together with a copy of an affidavit verifying the same, and the said plea and affidavit on the 26th October filed with the clerk of the Pleas of the Supreme Court, and that the trial took place on the 30th October when, notwithstanding such plea, the plaintiff proceeded to trial and obtained a verdict. He contended that the verdict should be set aside as irregular. [RITCHIE, C. J.: You must plead puis darrein continuance, either in term or at the assizes. You should have been there with your plea, and had it annexed to the record at the trial. The term commenced on the 11th October, and ended on the second Saturday, 'which was the 23rd. Your plea was not filed until the 26th. In Grumble v. Perley (1 Allen 512,) the Court refused to set aside a verdict where the defendant had allowed Trinity Term to elapse before pleading.] The defendant should be allowed to plead nunc pro tunc. The plaintiff's attorney was served with the plea before the end of the term. A rule nisi having been granted. Fraser showed cause in Trinity Term, reading affidavits which set forth that the defendant obtained his certificate of bankruptcy by fraud, and that he went through the Bankrupt Court as Samuel S. Stevens, whereas his real name was Shepperd S. Stevens. He contended that where the Court could exercise their discretion in allowing the defendant to plead nunc pro tunc, they would not allow him to take advantage of a fraud. The plea should have been pleaded within the first four days of Michaelmas Term, the subject matter of the plea having arisen in vacation. In Rex v. Taylor (3 B. & C. 614,) Abbot, C. J., referring to cases like the present, says "in civil actions by the indulgence of the Court, four days are allowed; but even if that indulgence was extended to the case of indictment, it would not apply to a case where the plea was not pleaded until after the first four days of the term." The plea was not properly verified, and the plaintiff had a right to treat it as a nullity. The affidavit should be made either by the party to the suit, or by his attorney. This affidavit is made by C. Herrin, of Houlton, Me., who merely says he is a professional adviser of the defendant. [RITCHIE, C. J.: How can you argue such a proposition as that? A man might have a perfectly good defence which neither he nor his attorney might be able to swear to in an affidavit.] C. H. B. Fisher, contra, contended that as new matter had been opened by the plaintiffs, he had a right to be allowed time to answer the affidavits, with respect to the allegations of fraud. The Commercial Bank v. The European Assurance Society. RITCHIE, C. J., you can have until next term to answer these affidavits, and the case may stand over until then. No affidavits in answer being produced by the defendant. RITCHIE, C. J., now delivered the judgment of the Court. The defendant is by the course and practice of this Court, in accordance with the former practice in England, when the proceedings in a cause were connected by continuances, limited to pleading such matters of defence only as had arisen since the last continuance, and if he allows the time to pass to which the cause was then continued without pleading, he cannot afterwards plead his new defence, unless he has the leave of the Court to plead it nunc pro tunc. In the present case, the defendant failed to plead within the time limited, and the cause having been tried, and a verdict for the plaintiff, the defendant now applies to set aside the verdict, and to be allowed to plead nunc pro tunc. The defence he seeks to put forward is a certificate of discharge under an Act of Congress of the United States of America, entitled "An Act to establish a uniform system of bankruptcy throughout the United States," approved March 2, 1867. In reply to this application, the plaintiff has produced affidavits to show that the dealings with the plaintiff on the part of the defendant, and the obtaining the goods from them, and for the price of which this action was brought, were fraudulent, and that the said certificate was obtained by fraud, and under the false and assumed name of Samuel S. Stevens, and a variety of facts and circumstances were set forth in confirmation thereof. These affidavits the defendant's counsel obtained, at the last term, time until the present term to answer; but having failed to produce any affidavits in reply, we must assume the facts set forth by the plaintiffs are true, and they afford a perfect answer to this application. THE COMMERCIAL BANK v. THE EUROPEAN ASSURANCE SOCIETY. OCTOBER 29, 1870. In an action of debt on a policy of guarantee under seal, which had been renewed agreeably to its terms by payment of the premium and the giving of a renewal receipt, the defendant pleaded non est factum. Held, That this merely traversed the making of the policy, and not the renewal recipt. In an action on a policy of guarantee, the declaration averred general performance, and the defendant in addition to a plea of non est factum, gave a notice of defence which set forth that plaintiff did not well and truly perform and fulfil all things contained in the said policy of guarantee and the conditions thereon indorsed, on their part to be performed. Held, That this notice being a traverse of a general averment of performance, was bad, |