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.(a)
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).