
    Morgan and Smith against Dyer.
    ALBANY,
    August, 1812.
    In an action of debt on a ^eirecordmi which issue 9* slptemthe cause mí ticed for trial October term foiiowtvied. On the 9th December, fendantpieadedpuisaarrcm' continuance, underlie m-d^dtheelth September, piea’was verivitf attorney, on the 1st of January, 1812 the , 28th December 1811 served’ a no-by record^* the agent of the defendant’s attorney, residing 150 miles from.®. bany, and in January terra. obtained judgJuly following faxfo“ costs to the defendant's attorney, which was the first notice he had of the plaintiff’s attorney having proceeded on the issue.
    It was held that the defendant was not too late, in August term, to apply to set aside the judgment; that the plaintiff’s attorney had no right to treat the plea puis darrein continuance as a nullity; but should have demurred to, or taken issue on, the plea, or have applied to the court to set it aside, as not pleaded in season. Though more than one continuance has intervened, the court will allow a defendant to plead his discharge nunc pro tunc, oh payment of costs.
    PARKER, for the defendant, moved to set aside all the pro«eedings in this cause, since October term last, on the ground of Irregularity, with costs, and that the plaintiffs reply to the plea puis darrein continuance, &c.
    
    It appeared, that the defendant’s attorney received a declaration in the cause, on the 9th of August, 1811, in debt, on a judgment, io which he pleaded mil tiel record, Src.' A replication was rereived on the 9th of September, and the' cause noticed for trial, by record, m October term, 1811. On the 9th or December, a plea puis darrein continuance, verified by affidavit, setting forth the discharge of the defendant under the insolvent act,Mated the 24th of September, 1811, was sent by the defendant, and served on the . , . n-r mi . . . plaintiffs attorney the 1st of January, 1812. 1 he plaintiffs, without taking notice of the last plea, noticed the cause for trial, by record, in January term last. The notice for trial was for the first Monday of January, and was received on the 28th of December, by the agent of the defendant’s attorney, who lived 150 miles from Albany. Notice of taxing costs was received in July last, which was the first notice the defendant’s attorney had of the plaintiffs’ having pro ceeded under the issue.
    
      Russell, contra, contended, that a term having intervened between the time of the discharge and the delivery of the plea puis ^ v jl jt darrein continuance, it was a nullity, and might be treated as such, lle cited 3 Eh Com. 37. 7 Johns. Rep. 195.
    
      Parker cited 2 Caines’ Rep. 380. 3 Caines’ Rep. 172. 2 Johns. Rep. 294.
   Per Curiam.

„ „ The defendant is not too late in the application, Though the notice of trial was served on his agent, on the 28th December, yet, as the plea puis darrein continuance had not then been served, and was soon after served on the plaintiff’s attorney, jje jja¿ g00¿ reason to conclude that the plaintiffs would not pro» ceed under their notice of trial, and especially, as his last plea (presuming it to have been well pleaded) was a waiver of his former plea in bar. The first notice he afterwards had of the plaintiffs’ having proceeded, in January term, to trial, upon the issue of mil fiel record, was in July last. Under these circumstances, the defendant is still entitled to be heard upon the merits of his motion.,

The plaintiffs were not warranted in treating the plea as a nullity. Though the discharge bore date in September, it might not have been actually executed: or, if executed, it might not have been delivered to the party, until after October term. The plea was duly verified by affidavit, and the defendant was entitled to have the goodness of the plea, both as to form and substance, referred to the judgment of the court. If the plaintiffs did not choose to demur, or take issue on the plea, the least they could have done would have been to have applied to the court, on notice, to set it aside, as was done in the cases of Paris v. Salkeld, (2 Wils. 137.) and of Martin v. Wyvill. (1 Str. 493.) In the latter case the motion was grounded on the very allegation that the plea was not pleaded since the last continuance, but after the lapse of two continuances... The decision of the court turned upon another point, but this case shows the practice; and if that course had been pursued, the defendant might very possibly have shown that the matter had arisen since the last continuance. But if not, and if in fact another continuance had intervened between a certificate of bankruptcy and the plea of it, as a plea puis darrein continuance, the courts in England, and here, have permitted the defendant to plead it nunc pro tunc, on payment of costs. (1 Chitty’s Plead. 637. 2 Johns. Rep. 294.)

The defendant is, accordingly, entitled to his motion, except as to the costs of the application, which, under the particular circumstances of the case, are denied to either party as against the other.

Rule granted. 
      
       See Bancker v. Ash, ante, p. 250.
     