Majority
p. 54Post, Survivor, &c. against J. Riley
Headnote
der’ihelnsoi- thls state, so tempts to1 party°ñ'omtha contract, made previous to the passing yLt atheV°de-avauanthii™ej7f tíct hisyerara ment-mbutS°he meSc aItleadfOT that purpose; and if he ne-gleets to do a°'judgment to ETm, htsTafi fiCTed! on the discharge, m motion. ■ Though aTHE plaintiff brought an action of covenant against Riley, for the non-payment of rept, on a lease dated Fe-bruary 3, 1807, düe the 1st day oí May, 1812. The defend-ant on 1st May,'i 812, obtained his discharge, under the “ ac^ for ^ie °f insolvent debtors and their creditors passed April 3, 1811, (sess. 34. ch. 123.) The defend- x * v J ant was arrested on a capias ad resp• returnable in Mojf 1817, and put in special bail. To the declaration filed in the cause, he pleaded, 1st, The general issue; 2nd, His discharge under the act. On the 3d March, 1819, the plaintiffs demurred to the plea of the discharge, and the defendant joined in the demurrerand in May term fol-l°wingt judgment was given for the plaintiff on the demur-rer. The cause was tried in November, 1819, on the , . . . _ _ . , 1. general issue joined, and a verdict found for the plaintiffs, on which a judgment was entered, and . docketted in Ja-nuary last. A fi.fa. was issued to the sheriff of New-Xork, wfi° returned nulla bona. A ca. sa. was thereupon issued, which was returned non est inventus. An action of debt, on their recognizance, was then brought against the bail,, the process being returnable at this term.
T. A. Emmet, in behalf of the hail, now moved, that an exoneretur be entered on the hail piece, on the ground that-the defendant had been duly discharged under the insolvent act of 1811. He contended, that although the Supreme Court of the United States, in the case of Sturges v. Crown-inshield, ( 4 Wheat. Rep. 122 .) had decided that the insolvent act of 1811 was unconstitutional, so far as it discharged the party from the debt or contract; yet, that case, as well ps the decisions of this court, supported the discharge,, so far as it liberated the person of the debtor from imprisonment and arrest. {Mather v Bush, 16 Johns. Rep. 233 . Roosevelt v. Cebra, 17 Johns, Rep, ÍÓ8.) The bail, therefore,
p. 55
who are responsible only in case the defendant is not surrendered within the time allowed by the rules of the court, ought to be relieved.
J. T. Irving, contra,
contended, that the discharge of the defendant, so far as it protected his person from arrest or imprisonment, ought to have been specially pleaded ; and that the bail could not avail themselves of it, on motion. That the discharge under the act of 1811, was pleaded as an absolute discharge of the debt, and being demurred to on that ground, judgment was given for the plaintiff. Independent of the laches of bail, in not seeing that the defendant had the plea amended, and pleading the discharge as to his person, the case is analagous to that of Clarke v. Hoppe and another, (3 Taunt. 46.) There the defendant having become bankrupt, and obtained his certificate, after-wards suffered judgment to be signed for want of a plea, and the plaintiff, after judgment and execution, proceeded against the bail; and the court of C. B. refused to relieve them on motion,[1]
The defendant, although his plea of discharge, so far as it went to his absolute discharge from the debt, was overruled, ought to have pleaded it specially, in discharge of his person from arrest and imprisonment, which is the proper mode of availing himself of it. The motion must be denied.
Motion denied.