Valkenburgh v. Dederick — 1 Johns. Cas. 133

Majority

p. 159

Valkenburgh against Dederick.

Headnote

Where the defendant obtained his discharge under the insolvent act, pendente lite, in time to plead it or give it in evidence, but neglected to do so, the court, after a judgment by default against him, and a surrender by his bail, refused to discharge him from custody.

This cause was at issue in July vacation, 1798, and an inquest by default was regularly taken against the defendant early in July, 1799, on which a rule for judgment had been entered at this term. The defendant obtained a discharge under the act for giving relief in cases of insolvency, on the 9th February last, and being surrendered by his bail, moved to be discharged from custody, and that the proceedings against him subsequent to his discharge might be set aside.

The defendant has shown no reason why he did not give his discharge in evidence, or plead it puis ■ dar. cont. and having neglected to make his proper defence, we will not interfere to help him.

In an ordinary case, and with a, more meritorious defence, the court would not relieve after so great a laches.^[1]

Rule refused.

(a) (a) Cross v. Hobson, 2 Caines’ R. 102. Ackerman v. Van Houton, 5 Halstead, 332. Mechanics’ Bank v. Hazard, 9 Johns. R. 392. And see Cost v. Riley, 18 id. 54 ; and Desobry v. Morange, id. 336.