Robertson against Crowell, impleaded with Padd and Snowdon

Robertson against Crowell, impleaded with Padd and Snowdon. Assumpsit. The defendant, Crowell, pleaded the general .. , . - , , , issue, and gave notice, with that plea, that he should, on the trial, give in evidence his discharge under the act for abol- , ' 0 ° ishing imprisonment for debt in certain cases; and, at the last Circuit Court in the city of Mew-York, the cause coming on to be tried, the discharge was accordingly offered in evidence ; but the Circuit Judge, supposing this to be the subject of a special application to this Court, overruled the evidence, and directed a general verdict for the plaintiff; and h0W’ To avail himself of a dis« charge of the pers°n f™”3 imprisonment, the defendant should plead disguch charge ; or her ™Mence on this finding should make a part of the postea, on. may be enter- where this course waz overruled by the circuit judge, and the plaintiff did not express a desire to contest the discharge at the circuit, nor impeached it by affidavit onmotiou, in the supreme court, to have, the judgment qualified, the motion was granted. W. Thompson, for Crowell, moved that the judgment to be rendered be qualified and confined to the property of Crowed, so that no execution issue against his body. W. King, contra, said that by allowing the discharge to be introduced on a summary application, the plaintiff was deprived of all opportunity to contest its validity before the jury. Crowell had a chance to prove, and have it tried at the Circuit, and it is now too late. (Palmer v. Hutchins, 1 Cowen’s Rep. 42.) If the Judge erred, the proper course was to make a case, and bring up the question in that form. [Woodworth, J. You did not dispute the validity of the discharge at the Circuit. Savage, Ch. J. Do you now deny this by affidavit ?] King. We do not deny it, because we supposed this t© be the wrong time for doing so. [MAJORITY — Curia.] Curia. The Judge should have received evidence of the discharge, and on the jury finding in favour of its validity, this should have been endorsed as a part of the postea, and returned ; upon which the plaintiff should have taken his judgment so modified as not to reach the defendant’s person. But the discharge was not contested at .the Circuit, nor is it now questioned. We, therefore, grant the application, under the special circumstances of this case. Motion granted.