
    Jedediah Barker vs. John Mann Jr.
    A debt of an insolvent debtor, payable in his work, is proveable under St. 1838, c. 163, and his certificate, granted according to the statute, discharges him from such debt, though it is not proved against his assigned estate.
    Assumpsit for goods sold to the defendant on the 2d of December 1840. The defendant filed, by way of set-off, an account against the plaintiff for goods sold to him on the 30th of April 1840.
    At the trial in the court of common pleas, the defendant admitted the plaintiff’s claim. The plaintiff also admitted that he had received of the defendant the goods charged in the account filed by him in set-off; but he proved that when he received said goods, he agreed to pay therefor in his work as a shoemaker.
    It was also proveo that the plaintiff, in August 1840, took the benefit of the St. of 1838, c. 163, for the relief of insolvent debtors, and on the 3d of October following, he received a certificate of discharge from his debts, in the manner prescribed in said statute ; the discharge taking effect from the 31st of August 1840.
    On these facts, “ the plaintiff’s counsel requested the presiding judge to instruct the jury, that the aforesaid discharge of the plaintiff absolved him from the defendant’s claim so filed in offset, and that the plaintiff could not be charged with the same in this action : But the said judge refused so to instruct the jury, and ruled that the defendant’s claim, having been stipulated to be paid in work, was not in :ts nature proveable under the insolvency, and that it still survived against the plaintiff.”
    The jury found a verdict for the defendant, and the plaintiff alleged exceptions to said ruling and instruction of the judge.
    Healy, for the plaintiff,
    cited Utterson v. Vernon, 3 T. R. 539. Johnson v. Spiller, 1 Doug. 167, note. Eden on Bankruptcy, (2d ed.) 130.
    
      Benjamin, for the defendant,
    cited Wilt v. Ogden, 13 Johns. 56. Talver v. West, Holt N. P. 178. 1 Comyn on Contracts, (1st ed.) 412. McArthur v. Lord Seaforth, 2 Taunt. 258. Banister v. Scott, 6 T. R. 489. Ex parte Campbell, 16 Ves. 248. 1 Cooke’s Bankr. Laws, (8th ed.) 223, 226. 1 Mont. Bankr. Laws, (2d ed.) 168.
   By the Court.

We are of opinion that the defendant’s demand might have been proved under the commission of insolvency which was taken out against the plaintiff, and therefore that it was discharged by the certificate granted to him.

Verdict set aside, and new trial granted  