
    Same Case — On a Re-hearing.
    Defendant having pleaded his discharge asa bankrupt under the act of 1841, plaintiff impeached it, and defendant excepted to the impeachment for vagueness and insufficiency. On the trial of the exception the court sustained it, and thereupon gave judgment at once in favor of defendant upon the merits. Held, that the case not being before the court on its merits, but only on the exception, no judgment could be legally rendered but upon the the latter leaving the case to be afterwards tried on the merits, when regularly set down; (C. P. 463, 533, 535. Stat. 10 February, 1841, s. 16 ;) that the main issue was, whether the certificate was a bar to the action ; that plaintiff was entitled to a hearing thereon; and that the case should be remanded for that purpose.
    
      Hamner, for the appellant,
    urged that the case should be remanded for further proceedings below.
    
      
      Elmore and W. W. King, for the defendant,
    contended, that the judgment of the court below was correct. The plaintiff having admitted the existence of the discharge by impeaching it, when the impeachment was set aside, the whole case was before the court. There was no occasion to defer a decision — to do so could have been of no advantage to either party.
   Morphy, J.

The defendant having pleaded in bar to the plaintiff’s claim a certificate of discharge, delivered to him by the District Court of the United States for the Southern District of Alabama, the plaintiff impeached his certificate as obtained through fraud. The defendant excepted to the impeachment as too vague and indefinite in its terms to enable him to know what were the charges against which he was to defend himself, and prayed that the impeachment be dismissed. Upon the trial of this exception, the judge ¡ s ained it, and immediately gave judgment absolutely in favor of the defendant upon the merits of the case. The plaintiff appealed.

The judge, in our opinion, erred. The case was not before the court on its merits, but only on the exception. No other judgment could be rendered but one granting or denying the de- ■ fendant’s prayer in his exception for the dismissal of the impeachment, and leaving the suit to be tried on its merits, when regularly set down for trial. Code of Tract, arts. 463, 533,535. Acts of 1841,’ p. 17, sec. 16. The main issue made up between the parties was, whether the defendant’s certificate was a bar to the plaintiff’s action. On this issue, however free from doubt it might have appeared to the court, the plaintiff was entitled to a hearing, and to the delays allowed to him by law for preparing his case for trial. When this case was before us, we reversed the judgment below, and rendered one for defendant as in case of nonsuit. We have reconsidered the position in which the parties stood under the pleadings, and now think, that the case should be remanded for further proceedings, leaving the plaintiff to pur • sue such course as he might have thought proper to adopt, had no judgment been rendered on the merits.

It is, therefore, ordered that the judgment of the Commercial Court be reversed, except so far as it sustains the exception made to the impeachment filed by the plaintiff; and it is further ordered that the case be remanded to be proceeded in according to law, the appellee paying the costs of this appeal.  