Page:Federal Reporter, 1st Series, Volume 5.djvu/274

262 FEDEBaL BEPOBTEB. �the very point of their decision. Our law, therefore, may fairly bear the construction, which was toc refined when ap- plied to the English statuts. �Considered merely as a matter of form, it must be admitted that when a bar does arise after action brought, the most ordinary way of pleading is to conform to the fact and show that it is to the further continuance of an action, properly begun, that you interpose this defence. But, when we con- sider the bearing of the argument upon this case, I see no reason why the plea which the statute gives should overrule ail other defences. The true intent and spirit of the law would not be carried out by such a ruling. The bankrupt act means that in actions pending on provable debts, the bankrupt should have the same benefit of his discharge in ail substantial respects as if he had obtained it before suit. No doubt it might have been wise to make some provision for the costs of a suit lawfuUy begun before the bankruptcy of the defendants. I do not decide positively upon the effect of the statute in this respect, because in this case, as I shall show, the law of New Hampshire does not differ from what I sup- pose to be the true intent of the bankrupt law. In Massa- chusetts a somewhat similar question came up, but in a wholly different way. In that state, by statute, when a dis- charge in bankruptcy was pleaded, and the plaintiff discon- tinued or was nonsuited solely by reason of that plea, the defendant was to recover no costa. In this state of the law it was held that the plaintiff had a right to discontinue when such a plea was pleaded, though thore were other defences set up, becausG he might elect to accept this plea and save his costs ; and thereupon, if the defendant insisted upon going to trial, the court below should have required him to rely on his other defences. Goward v. Dunbar, 4 Cush. 500. I do not understand that there is any similar statute or praetice to govern this case. �Coming, now, to the technical question whether, by the law of New Hampsliire, whose forms and modes of proceeding govern this case, unless repugnant to the bankrupt law, the fourth plea overrules the others, it seems, by the authoritiea ����