By the Court,
Nelson, Ch. J.It appears to be well settled, in respect to the privilege of the person of the defendant from arrest, that the sheriff may take notice of it, and decline executing the process ; but this is under the peril of showing, if prosecuted, that the exemption is well founded. Dougl. 671. 2 Black. R. 1190. 11 Johns. R. 433. If he does arrest, no action will lie against him. Id. I doubt whether this rule should be applied in respect to process against property, where the defendant has been discharged from the judgment under the insolvent laws. The defendant in the execution should, in such case, be driven to his motion for relief, as the delay in the application to the court can work no great injustice. But if the officer should be allowed to notice the discharge it should be under the risk of showing, if proceeded against by the plaintiff in the execution, a case that would entitle the defendant to have the process set aside.
I am aware that the discharge under the two-third act has been held conclusive on a motion to discharge from arrest on filing common bail. 1 Cowen, 50, and cases there cited. A different practice, however, prevails under the act of 1819, abolishing imprisonment for debt in certain cases. 1 Cowen, 226. But I do not believe we should apply the above rule to the case of an application to relieve the property from seizure by execution, on account of the discharge—the plaintiff should be allowed to question its validity.
Conceding the discharge in this case to be void, of which there cannot be much doubt, the question whether the property was even then subject to the execution still existed, and was properly submitted to the jury, under the peculiar circumstances of the case. I say properly submitted, because no objection is made to the charge. If the question had been between the plaintiffs and Soper, we might have been *354inclined to interfere with the verdict; indeed, as between them it could not be sustained. But we cannot fail to see that the plaintiffs have, in some measure, been instrumental in producing a result of which they now complain, and upon which they seek to found their right to a recovery. ■ The sheriff applied at once to the attorney for instructions when the discharge was produced, advising him of the fact, and requesting an indemnity if he desired him to proceed. It is not denied but that the letter was received, and no answer was given. The officer might well concl ude that the plaintiffs did not intend to contest the discharge or seek to hold the property. They were not bound to give the indemnity, but they should, at least, have advised the sheriff of their determination, whatever it might be. The jury were justified in taking the most favorable view of the transaction for the defendant, as it would be unjust now to hold him accountable for the property after it has passed beyond his control, and the defendant in the execution has become bankrupt.
New trial denied.