Austin v. Markham , 44 Ga. 161 ( 1871 )

McCay, Judge.

1. We are inclined to think this motion to reinstate came too late. If the Court erred in dismissing the suit, was it not a simple error of law ? And, if so, why is not the movant barred by his failure to except to the decision, as required by the Code, within thirty days after the adjournment of the Court ? A Court may, at the next term, hear such a motion when the judgment was based upon some mistake of fact or fraud, etc., but even then there ought to be some reason why the motion to reinstate was not made at the term. But if the error be simply an error of law, it would seem that there ought to be the same excuse for delay as is required to excuse delay in a motion for new trial.

2. Were this an action on the promissory note, which is the debt promised to be paid, we should not be so clear that the production of the certificate of discharge would authorize the Court to dismiss the suit. Why is this .plea in bar different from any other plea? Is there anything in such plea which divests the jury of jurisdiction ? Why is not thefaot of discharge a matter to go to the jury, just like any other fact? True, it is conclusive when made out, but so is payment or non est factum.

3. But this is an action on the promise of the defendant to pay this note, in consideration that the plaintiff would withdraw his opposition to the defendant’s discharge as a bankrupt. This is set forth in the declaration. Such a promise is illegal and void, by the positive provisions of the bankrupt law of 1867. And even without this it would be void ; such a promise is a fraud upon the other creditors, and is contrary to public policy. The plaintiff’s suit was, therefore, properly dismissed, and it was error in the Court to reinstate it.

Judgment reversed.