„ „ 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 *256been 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. (a)
See Bancker v. Ash, ante, p. 250.