
    Campbell against Palmer.
    ALBANY,
    Feb. 1827.
    Motion, in behalf of Norton, the special bail of the defendant, Palmer, that an exoneretur be entered on the bail piece. On the 4th of April, 1826, Palmer was discharged under the insolvent act to abolish imprisonment for debt ⅝ r in certain cases. He omitted to plead his discharge; or avail himself of it m any way. The cause was tried on mer*ts August last, a verdict found for the plaintiff, and judgment perfected in October term thereafter. No suit had been brought against the bail.
    Though a ⅞-fendant be discharged under act, if'he'have time to plead the discharge, but omit to do tur will not, af-⅛ orderctMin fevorof his spe-count ⅛°“ the discharge.
    surrender¡nthe ordinary way.
    
      Foot, for the motion, cited
    4 John. Rep. 409; 14 East^ 599 . j Caines, 9, 11; 2 John. Cas. 403 ; 1 Burr 244; id. K> 2 John. Rep. 101 • $ i¿.. 2W. 1 Dual Pr. 209 ; 1 Corven, 165;
    
      
      B. F. Butler, contra,
    cited 18 John. Rep. 54; 9 id. 392; 1 Cowen, 427.
   Curia.

Post v. Riley, (18 John. 54,) and Mechanics’ Bank v. Hazard, (9 id. 392,) are in point against the application. The discharge should have been pleaded, being long before judgment. This not being done, the defendant cannot avail himself of it, and the bail are concluded. They must discharge themselves in the ordinary way, by surrender. (Franklin v. Thurber, 1 Cowen, 427.)

Motion denied.  