Majority
p. 336Desobry and another against Morange.
Headnote
Where a de-his ^discharge under 'the insolvent act, after a declaration in a suit against him has been filed, he ought to plead his discharge, at or before the next term, or where no default, for want of a plea, has been entered until after the next terra, at least, before the entry of a default: and if he neglect to do so, he will not be allowed, after a judgment has been perfected, to plead his discharge, nunc pro tunc.THE declaration in this cause was filed the 4th of March last, and a default for want of a plea entered on the 29th of
p. 337
July, on which an interlocutory judgment was entered, and notice given for executing a writ oí inquiry on the 9th ot August. Final judgment was entered on the 19 th oí August, and docketted on the 24th of August, and an execution issued thereon the same day.
On the 15th of April last, the defendant obtained his discharge under the insolvent act.'
Caines, for the defendant,
now moved for leave to plead the discharge of the defendant puis darrein continuance, nunc pro tunc, as of May term last, on payment of all the costs, which had accrued since his discharge.
Johnson, contra.
The motion must be denied. The defendant has been grossly negligent in not pleading his discharge in proper season, either before or at the May term, or before the default for want of a plea was entered,[1]
Motion denied.
(a) (a) Vide Valkenburgh v. Dederick, 1 Johns. Cases, 133. 7 Johns. Rep. 195 . 9 Johns. Rep. 392 .