
    The People, on the relation of Ezra Thayer, vs. The Judges of the Ontario Common Pleas.
    caused defenpleí ™f%ui^ darrein, plead discharge;
    Motion for a mandamus. A judgment was rendered ag'a™st the relator in March, 1827, in a justice’s court, from which he appealed to the Ontario common pleas. The declaration in the court below was in assumpsit; the plea, the general issue.' The cause came on to trial in the common pleas, in February, 1828, and before the calling of the jury, the relator offered a plea, puis darrein continuance, stating the obtaining of a discharge as an insolvent debtor by him, under the three-fourth act, in January, 1828 ; which the court refused to receive, under the impression that the canse must be tried npon the issue joined before the justice, and upon that alone. The trial proceeded, and a verdict was rendered against the relator, upon which judgment has been entered. Application is now made for a mandamus to set aside the verdict, and to give the defendant leave to plead his discharge.
    
      TV. Hubbell, for relator.
    
      M. H. Sibley, contra.
   By the Court,

Savage, Ch. J.

Ordinarily, no doubt, the court- of common pleas are bound to try an appeal cause upon the pleadings and issue joined before the justice; but when new matter exists, which furnishes a defence to the action, arisen since the rendering of the judgment before the justice, and which, unless plead, would be unavailable, the party must be allowed to plead it. Let an alternative mandamus issue.  