Baker v. Judges of Ulster Common Pleas — 4 Johns. 191

Majority

p. 191

Baker against the Judges of Ulster Common Pleas.

ALBANY,

February, 1809.

Headnote

Where the defendant in a suit in the Comman Pleas obtained me uA-vviiai gc under the in solvent act, on the same day that a judgment was rendered against him in that court, and being brought up on a ca. sa. the court discharged him, on motion, this court held the proceeding to be regular. A party entitled to relief by an audita querela, may be relieved on mo? tion.

SUDAM

moved for a rule to show cause why a mandamus should not issue to compel the judges and justices of the court of common pleas, of Ulster county, to vacate a rule granted by them for discharging one Daniel Ketchum, jun. from a ca. sa. on the ground that he had been discharged under the insolvent act, on the same day that judgment was entered against him.

As the judgment was contemporaneous with the discharge under the insolvent act, the defendant had no opportunity to plead his discharge. (2 Caines, 380. 1 Johns. Cases, 133.) He might have sought relief by an audita querela; but it is usual to grant the same relief on motion, and the rule of the court below was properly granted. The motion must be denied.

Rule refused.