
    Hines against Ballard.
    NEW YORK,
    October, 1814.
    In discharge tinder an msolvent act, it is the defendant ¿¿charge, and stáícesT.re necessary to give the judge c<j™?«dic-a'
    joined to the general issue of a discharge unvent act ¿t'i’ the^iroviou™s-5,, The th^’defendant ed, and a resident, &- but those r-«-t?, alstateli in the provTdTjyThe
    J* tie’®:TT¡ ■i-»t the eMss.iarr-^, been discharged, the cpmmissioner's name, and the date of
    THIS was an action on several promissory notes, for the delivery of gin or whiskey, at certain successive periods. The ° J r defendant pleaded the general issue* and gave notice therewith* that he should give in evidence his discharge under the insolvent act of 1811, setting it forth verbatim. The cause was tried at the Oneida circuit, in June, 1814, before Mr. Justice Vnn Ness y an ivess.
    
    It is unnecessary to state the evidence on the part of the plaintiff. The defendant gave in evidence his discharge, granted by Nathan Williams, Esq. commissioner, in the county of _ , . Oneida, under the act, and dated Marca 19th, 1812. To this the plaintiff objected, that it did not appear, by the discharge, that the defendant was imprisoned or impleaded, or residen! ihree months within the county of Oneida, (in which his discharge was obtained,) so as to give the commissioner jurisdiction over the same. The defendant thereupon produced the original proceedings under the act, on file in the . . , clerk’s office in Oneida county, a capias ad respondendum, m an action by the plaintiff against the defendant, returnable in September, 1811, and returned served; (the petition having been presented on the 28th of September, and the oath required by the act administered on the same day;) and the defendant proved, by parol, that he had been an actual resident of the comity of Oneida, before he presented his petition, and alse that he made due proof thereof, and of his having been impleaded, to the commissioner. All which evidence was ob-9 jected to, but was admitted by the judge, subject, however, to the opinion of the court as to its competency.
    The jury found a verdict for the plaintiff, subject to the opinion of the court on a case to be made.
    
      Sill, for the plaintiff.
    The defendant having pleaded the general issue, and given notice of the discharge only, it was not competent to him to give in evidence other matters, or the proceedings before the commissioner, to help out the discharge. The residence of the defendant in the county for three months immediately preceding his discharge and his imprisonment, or prosecution, are material and traversable facts, and ought to have been pleaded, or notice thereof given under the general issue; for had the plaintiff received notice of their being intended to be given in evidence, he might have been prepared to disprove them, and to show that the commissioner had no jurisdiction.
    Now, if this evidence is rejected, it does not appear that the commissioner had any jurisdiction, which it is essential for the defendant to show.
    
    . The commissioner was admitted as a witness; but he could not be allowed to give evidence to support his own jurisdiction. Nothing extrinsic to the proceedings is admissible. By the 22d section 0f the act, (sess. 34. c. 123.) after the final hearing and decision, all the documents, &c. relative to the proceedings, are required to be filed in the office of the clerk of the court, there to remain of record.
    
      Slorrs, contra.
    The statute says, the insolvent may plead the general issue, and give the special matter in evidence, under a notice, in which he is requested to state, that he has been discharged under the act, the recorder or commissioner who signed the discharge, and the date thereof. This was intended to prevent the trouble and expense of setting out all the proceedings. , Independently, however, of the statute, the discharge implies every thing requisite.
    The rule on the subject is, that it must appear on the face of the whole proceedings, that the commissioner or judge had ju-
    
      risdlcílon \ not that it should appear in every paper, or in any particular part of the proceedings. Now, it appears from the petition, on file, that the defendant was resident in the county, &c. and had been prosecuted. It cannot be objected here that the commissioner did not receive sufficient or proper evidence of those facts. It is enough if they appear on the face of the proceedings.
    If the defendant had pleaded specially that he was a resident of the county of Oneida for three months immediately preceding his petition, that he had been prosecuted, and that he presented his petition to the commissioner, and that such proceedings were thereupon had that he was discharged, setting forth the discharge, it would have been a good plea. Row lie has shown as much, under the general issue, In this case, *
    
      
      
         Service v. Heermance, 1 Johns. Rep. 91. Frary v. Dakin, 7 Johns Rep. 75. Morgan v. Dyer. 10 Johns. Rep. 161.
      
    
   Yates, J.

delivered the opinion of the court The question in this cause is, whether under the notice annexed to the pleas, containing the discharge only, it was competent to prove the prosecution, and residence of the insolvent, by the proceedings on file in the cleric’s office in Oneida county.

The principle is well established, and has been frequently recognised by this court, that, a discharge under the insolvent act might be pleaded, in the same manner as the proceedings of an interior court were allowed to be pleaded; and that it was sufficient to state enough to give the magistrate jurisdiction, &c. (Service v. Heermance, 1 Johns. Rep. 91. Frary v. Dakin, 7 Johns. Rep. 75.)

By the insolvent act of 1811, two things are necessary to give the commissioner jurisdiction; imprisonment or prosecution of the debtor, and a residence in the county for three months immediately preceding the time of presenting his petition. The same act, to secure to the insolvent the benefit of his discharge, authorizes him, if sued, prosecuted, impleaded, arrested, or imprisoned, to plead the general issue, and give the special matter in evidence upon and under a notice given with such plea, in which notice he is required to state that he has been discharged under that act, the recorder or commissioner who signed the discharge, of the city and county in which said discharge was obtained, and the date thereof.

The notice annexed to the general issue is in the nature of a special plea? and, although the same strictness is not required as in pleading specially, yet, to prevent surprise, the party can» not be allowed to give evidence of matter not contained in the notice. That, however, cannot be alleged in relation to the evidence now in question. The recognition of the discharge in this notice was strictly consonant to the directions of the statute; and the proceedipgs of the commissioner, filed in the clerk’s office, under the same statute, must be deemed a public record of the facts on which the discharge was founded. Due notice of this discharge necessarily involves an inquiry into those proceedings, sufficient to prevent surprise to the opposite party; they are a part of the discharge itself, and notice of it was also notice of the official act of the commissioner, upon which it was founded. The proceedings on file in the office were properly received in evidence ; and they go to show that the insolvent had been prosecuted, and that he resided in the county of Oneida, for three months preceding the time of presenting his petition, by which the jurisdiction of the commissioner is fully established; so that the defendant was entitled to the effect of his discharge, which,of course, is a sufficient and valid defence in this action. The defendant, consequently, is entitled to judgment.

Judgment for the defendant  