
    Billings, Assignee, &c. against Skutt.
    Where a person had given a bond, with a warrant of attorney, and ’afterwards obtained his discharge under the insolvent act, and the person to whom the bond and- warrant were given entered-up judgment, the court, on motion, ordered the judgment to be set aside. ...
    A judgment by confession was entered against the defendant on a bond, executed by him to Ter Bush, by virtue Of a warrant accompanying the bond, and directed to any attorney to confess judgment thereon.
    It was moved to set aside the judgment on the ground that the defendant after giving the bond, and before the judgment was entered up, became insolvent, and obtained a discharge under the act for the relief of insolvent debtors, passed the 13th April, 1786.
   Per Curiam.

It appearing that the defendant obtained such discharge, the plaintiff, if he meant to contest its validity, ought to have brought a suit in the ordinary [*106] course, *on.the bond. The judgment is a surprise on the defendant, and must, .therefore, be set aside.

Rule granted. ' 
      
      
         See Baker v. The Judges of the Ulster Common Pleas, 4 Johns. R. 191. Palmer v. Hutchins, 1 Cowen, 42. Mabbott v. Van Beuren, id. 44, n. (b).
     