ART. 47] INSOLVENT RECORD——PLEA OF DISCHARGE. 1227

proper representative3, as hereinbefore provided, the trustee in insol-
vency shall only be authorized to sell the equity of redemption of the
insolvnt in all such property by decree, mortgage or bill of sale as
aforesaid.

This section is not retrospective, and has no application to proceedings
commenced before it was passed. Gable v. Scott. 56 Md. 182; Mackubin v.
Boardman. 54 Md. 384.

Prior to the adoption of this section a non-resident mortgagee was held
to have a right of sale paramount to that of the insolvent trustee. Ensor v.
Lewis, 54 Md. 397.

Prior to the adoption of this section, the law (subject to certain conditions),
was to the contrary. Ensor v. Keech, 64 Md. 381; Mackubin v. Boardman,
54 Md. 384; Zeigler v. King, 9 Md. 332; Bank of Westminster v. Whyte, 3
Md. Ch. 512; Alexander v. Ghiselin, 5 Gill, 178. See also, Gable v. Scott,
56 Md. 184.

Cited but not construed in Crocker v. Hopps, 78 Md. 265 (involving a
chattel mortgage); Buschman v. Hanna, 72 Md. 4.

1904. art. 47, sec. 26. 1888, art. 47, sec. 26. 1880, ch. 172, sec. 27.

26. It shall bo the duty of the several clerks of the courts of this
State, wherein any proceedings in insolvency may be pending under
any of the provisions of this article, to have and keep a book to be
called "insolvent record" in addition to the book in which he may
keep docket entries of said proceedings, in which book of "insolvent
record," whenever any real estate shall have been sold by said trustee,
the said clerk shall record the petition of insolvent or creditors, as the
case may be, all conveyances relating to said insolvent estate, to the
preliminary or permanent trustee, and the trustee's report of the sale
of said real estate, together with all orders of the clerk or court, giving
efficacy thereto, for which said record the said clerk shall receive such
fees as are now allowed for recording sales of real estate under decrees
of courts of equity in this State; and in all sales of real or leasehold
estate to be made by the permanent trustee under the provisions of
this article, the same shall be made in the county or city wherever
the said real or leasehold estate is situated, and after due advertisement
of such sales in at least one newspaper published in such county or city.

Ibid. sec. 27. 1888, art. 47, sec. 27. 1880, ch. 172, sec. 28.

27. A discharge duly granted under this article may be pleaded
by a simple averment that, on the day of its date, such discharge was
granted to the party, and setting the same forth in its exact words
or according to legal effect; and a certified copy of said discharge shall
be sufficient evidence of the fact of said discharge.

Where to a plea of discharge, the plaintiff replied "nul tiel record," the
issue is solely for the court. If the court determines that there has been
a discharge, an unqualified judgment for the defendant should be entered.
Becker v. Whitehill, 55 Md. 573. See also, State v. Culler, 18 Md. 419.

To a plea of discharge, a replication to the effect that the defendant was
not in fact insolvent when he applied, is bad. State v. Culler, 18 Md. 419.

If a defendant fails to plead a discharge to a suit resulting in a Judg-
ment against him, he can not plead it to a sol. fa. to revive the Judgment-
Moore v. Garrettson, 6 Md. 447.