Palmer against Hutchins

Palmer against Hutchins. When a no^Tpportuntty °f. P^a-change, under the insolvent act, puts darrien continube^elievedon motion. The last continuanee is the last day of the return of the venire facias. And a plea not^be^interposed after a reKtioandcognovit. • Isr Assumpsit.—Silliman, moved to set aside a ca, sa. upon which the defendant was arrested on the 30 th of April last. The cause was at issue, and noticed for trial at the Albany Circuit, the third day of October, 1821 ; when a rei{cfa an(j cognovit were given by the defendant, who, on ° ° J the 8th of the same month, obtained his discharge, under ^le ‘ act io abolish imprisonment for debt, in certain cases.' Judgment was entered as of October term thereafter, pur- » suant to a stipulation in the relicta. ^7 ]pel$on contra. The defendant should have pleaded . . , his discharge puis darrein continuance ; otherwise the plam^ff ^as 110 opportunity of contesting its validity. (Cable v. Cooper, 15 John. R. 152. Merchant's Bank v. Moore, 2 John. Rep. 294. Post v. Riley, 18 John. 54.) By sustainjng this application, the Court give the defendant the full benefit of his discharge, without,the possibility of the plaintiff’s contesting it; for it cannot be questioned oh affidavit. (Cole v. Stafford, 1 Caines, 249, Noble v. Johnson, 9 John. Rep. 259.) Suppose an action upon this judgment; could the defendant plead his discharge ? He does not ask for this ; and it is now too late to do it of course. (Jackson v. Rich, 7 John. Rep. 194. Desobry v. Morange, 18 John. 336.) No excuse is shown for not pleading it earlier, as was done in the Mechanick's Bank v. Hazard, (9 John. Rep. 392.) Silliman, admitted, that where the defendant has the opportunity of pleading his discharge, but omits to do it in season, he is precluded the benefit of it, unless he is afterwards let in, on terms, upon excusing the delay. This is the principle of the cases cited against the application, from the 15th, 2d, and 18i/i of Johnson’s Reports ; and so in the cases of Van Valkenburgh v. Dederick, (1 John. Cas. 133,) Cross v. Hobson, (2 Caines, 102,) and Shaw v. Wilmerden, (id. 380.) But this is clearly otherwise where the defendant has not had the chance of pleading his discharge. In Billings v. Skutt, (1 John. Cas. 105,) a judgment on bond and warrant of attorney was set aside, because the defendant had obtained his discharge intermediate the execution of the bond and warrant, and the entry of the judgment. And in Baker v. The Judges of Ulster County, (4 John. Rep. 191,) the defendant had been discharged the same day that judgment was entered, and the Court relieved him from the ca. sa. on motion, upon the ground which we take-in this cause. It was too late to plead puis darrein continuance, after the relicta and .cognovit given. [MAJORITY — Curia.] Curia. -The rule is, that where the defendant has an opportunity of pleading his discharge, he cannot be relieved on motion. The last continuance is the last day of the return of the venire facias, which, in this case, was the 1st day of August term, 1821. (Br. Continuance, 57. Bull. N. P. 310.) The discharge being obtained after that day, and' before the next continuance, the defendant might have pleaded it, unless prevented by the relicta and cognovit.. A plea puis darrein-continuance cannot'be pleaded after the jury have given their verdict. (Pearson v. Parkins, Hill. 3 Geo. 1. Bull. N. P. 310.) We consider the relicta and cognovit §*ven hy the defendant, equivalent to a verdict, for the purposes of the present question. The defendant, therefore, had no opportunity of pleading his discharge. It is not pretended butthat the discharge is regular, . And the motion must-be granted. Continuance, in the common law, is of the same signification, with prorogatio in the civil; as continuance till the next assize. (Terms de la Ley, Am. ed. p. 114.) The continuance day is the esspiri day; (Dyer, 361, . pi. 10,) that is, the first day of term ; (1 Sell. Pr.4. Walter v. Bould, Bulstr. 35, per Hemming, C.J.) and this is the proper return day of the writ; (Per. Williams, J, in Walter v. Bould, 1 Bulstr. 35 ;) and the appearance of the jury, and the taking of the inquest shall relate to this day. (Dyer, 361. Swan v. Broome, Bl. Rep. 497, Walker, arguendo.) In this - case the-regularity of the discharge not being questioned, it "was unnecessaryfor the Court to say what should" be done, where the plaintiff asks the opportunity of trying its validity on the record. It appears from a case lately reported by Mr. Wheeler, in the JY. Y. Criminal Recorder, that a similar question .arose in the Mayor's Court of the City of New-Yorle, in March, 1816 ; the present able and learned Recorder being then on the Bench, and taking a principal part in the decision. The ftillowing is the report of that case :— “ Samuel Mabbott against Nicholas Van Beuren. In this case an important question arose, upon a discharge under the insolvent act. The defendant’s default was entered for not-pleading on the 10ft of October last. On the 21 st of October the defendant was discharged tinder the act. On the 24ft of October execution was issued against him. The defendant being taken on-the execution, the question was, Has he any relief ? Riker, Recorder.—The general vale is this : If the discharge he on the same day, or subsequent to tlie judgment, the Court will relieve on motion, because the defendant had no opportunity to plead his discharge puis darrein continuance. The Court will not drive the insolvent to his audita querela. (Baker v. Judges of Ulster, John. Rep 191.) If the insolvent omit to plead his discharge, the Court will not relieve him, after he is taken in execution. (Cross v. Hobson, 2 Caines, 102.) It is true, an insolvent, after a continuance has passed, has, on payment of costs, been allowed to plead his discharge nunc pro tunc. (Morgan & Smithv. Dyer, 9 John. Rep. 255, 256. 1 Chitty,63.) This was before execution. But what is the law where the insolvent obtains his discharge a few days before the judgment, and too short a time to give him an opportunity to plead it", and is taken in execution ? Reason and equity unite in this, that there should" be relief afforded some way or other. Hbw shall it be done ? My opinion has beeq that" the defendant'ought to be relieved from the execution: tjiatthe judgmentshbuldh’e set asid'e upon payment of costs, and that the defendant might be let in to plead his discharge. To this- plea the plaintiff might reply fraud, and thus put in issue the legality of the discharge. This will be doing justice to both the plaintiff and defendant. The judgment might perhaps be allowed to stand as a security for the final result. In this case the following order is made : let the defendant be discharged from imprisonment under the ca. sa. upon filing good special bail. Let the j udgment and default be set aside, and the defendantplead his discharge as of the term next after such discharge. The plaintiff to have leave to traverse or plead to the said discharge, and the defendant to pay all the costs which have accrued from the time he so obtained the discharge. Phanix, for Defendant. Woodsworth, for Plaintiff.”