
    Morgan and Smith against Dyer.
    NEWYORK,
    May, 1813.
    
    An objection to a plea puis darrein con-¡^was^ot^ ,1“6) cannot^ ta-of by the° plaintiff, on demurrer; but it should be made on motion to set aside the plea.
    It rests, however, in the discretion of the court, to receive such a plea or not, after more than one continuance between the time the matter of the plea arose, and the putting in of the plea.
    A plea of adiscliarge under the insolvent act of the 3d Jl/iril, 1811, (sess. 31. c. 123.) must set forth matter enough to give the judge who grants the discharge, jurisdiction; and such plea must state that the defendant had been an inhabitant of the county for three months preceding the presenting the petition, or that he was in prison in the county; otherwise, it is bad.
    THIS was an action of debt on a judgment, obtained in the court . m. of common pleas of Washington county, in 1804. 1 he declaralion was filed in May term, 1811; and an imparlance given to August term, when the defendant, pleaded mil tiel record; a replication joined issue thereon; a day was given to the next Oc
      
      tobcr term, to bring in the record, See. and continuances were entereci from term to term, until October term, 1812, and in the vacation following, the defendant pleaded, that since the last continuanee, to wit, on the 24th September, 1811, being an insolvent debtor, within the meaning of the act, passed the 3d April, 1811, the commissioner under the act, for the county of Onondaga, being interested as a creditor, the defendant presented his petition, &c. to the first judge of the court of C. P. of the county, which petition, and all the documents, were duly filed in the office of the clerk pf the court; and such proceedings having been had, See." that the said judge being convinced that the defendant was an insolvent debtor, See, and that the defendant had conformed in all things to the act, See. he granted to the defendant a discharge, See. which was set forth verbatim, and recited all the proceedings regularly under the act. This plea was verified by affidavit, The plaintiffs demurred to the plea, and the defendant joined in demurrer.
    
    
      J. Russel, in support of the demurrer,
    contended that as several terms had intervened between the time of granting the discharge and the pleading it, the plea was bad. The fact relied ^ a p]ea> must be pleaded" before a term intervenes ; and its validity is to be tested on demurrer only, for the court being bound to receive the plea when verified by affidavit, will not set it aside on motion.
    
    rype pjea jg essentially bad, as it does not appear that the magistrate who granted the discharge, had jurisdiction. It ought to have stated that the defendant had resided three months previous to presenting his petition, in the county of Onondaga, otherwise t}ie judge had no jurisdiction,
    Again, if the judge had jurisdiction, he exceeded it. For the act1 authorizes him, on being satisfied that the petitioner has conformed to the act, &c, to order an assignment of his estate, excepting such articles of. wearing apparel, and bedding, and such tools of his trade, as, in his opinion, are reasonable for the petitioner to retain, ,and also the arms and accoutrements of the petitioner required by him in the militia. The discharge states that the judge excepted such articles of wearing apparel, &c, arms, and accoutrements as he thought necessary for the petitioner and his family to retain. Any excess of jurisdiction wifi vitiate the whole-discharge,-i1
    
      
      Randall and N. Williams, contra,
    contended that the plea having been put in, nunc pro tunc, by leave of the court, it must be considered as pleaded in proper time. Besides, the party cannot. avail himself of this obj ection as to the time of pleading, on demurrer.
    The discharge states that the defendant presented to the judge a true account of the suits on which he was then imprisoned or impleaded, with the names of the plaintiffs, See. It was not necessary for the defendant, in his plea, to state that he was a resident in the county for three months preceding the presenting his petition ; that being required only by the proviso in the same section of the act. It is for the plaintiff, if he means to avail himself of the proviso as against the defendant, to state it, by way of replication.
    
    The allowance as to wearing apparel, arms, Sec. is referred to the opinion and discretion of the judge; if too much was excepted, the surplus will belong to the assignees. This is not a matter that can vitiate the proceedings.
    
      
       See S. C. 9 Johns. Rep. 255.
      
    
    
      
       3 Bl. Com. 317.
      
    
    
      
       3 Term Rep. 554.
    
    
      
       1 Johns. Rep. 90. 7. Johns. Rep. 70.
    
    
      
       ess. 34, c 123. a. 1.
    
    
      
      
         Willes's Rep. 199. 416. 3 Term Rep. 424. 1 Salk. 273. Cowp. 640.
    
    
      
       4 Johns. Rep 306. 1 Ld. Raym. 119. 1 Stra. 1109. 1 Term. Rep. 141.
      
    
   Per Curiam.

The proper course for the plaintiff, if he wishes to avail himself of the objection, that the plea was not pleaded in season, is by motion to set it aside, and not by demurrer. On demurrer, this court are to judge, from the plea itself, whether it is sound in form or substance, and not whether it was put in within the regular time for pleading such a plea. It rests in the discretion of the court to receive it, or not, even after more than one continuance between the time that the matter of the plea arose, and the coming in of the plea, and this discretion will be governed by circumstances extrinsic, and which cannot appear on the face of the plea. (Bancker v. Ash, 9 Johns. Rep. 250. Morgan v. Dyer, 9 Johns. Rep. 255.)

But the plea is intrinsically bad in not setting forth matter enough to give the first judge of the county of Onondaga jurisdiction in the case. To have given him that jurisdiction, under the act of the 3d of April, 1811, it ought to have been stated that the defendant had been, for three months preceding the petition, an inhabitant of that county, or that he was in prison there. The imprisonment upon civil process was a fact that must have existed, to entitle the insolvent to petition, and the judge to act upon it. It has always been held to be essential that the plea should state sufficient to show that the judge was authorized to proceed, and if that be done, then the discharge would be evidence of the siibgffquent proceedings. (Service v. Heermance, 1 Johns. Rep. 91. Frary v. Dakin, 7 Johns. Rep. 75.)

The plaintiff is, accordingly, entitled to judgment, with leave, however, to the defendant, to amend his plea, on payment of costs, and the plaintiff may, thereupon, if he pleases, discontinue without costs. 
      
      
         The same judgment was given in the case of Boardman against Ives, which was an action of assumpsit the defendant pleaded non assumpsit: and afterwards put in a plea puis darrein continuance, of his discharge under the insolvent act of the Sd April, 1811, before the commissioner in Oneida county. The defendant replied that the discharge was obtained by fraud, to which there was a demurrer and joinder.
      On the argument, the counsel for the plaintiff admitted that the replication could not be supported, but relied on the plea being bad, and stated the same objections as were made to the plea in the above case of Morgan & Smith v. Dyer.
      
      Sill, for the plaintiff.
      
        Randall and N. Williams, for the defendant.
     