The general rule is this : If the dis-_ , . n , charge be on the same day, or subsequent to the judgment re^eve on motion, because the defendant had no opportunity to plead his discharge puis durrein *321continuance. The Court will not drive the insolvent to his audita querela. Baker v. Judges of Ulster, 4 Johns. Rep. 191.
Phoenix, for Defendant. Woodsworth, for Plaintiff.],e on thc COnditlon tliat a11 the costs that have accrued ci^-Vbe paid bythe’defendCenter good sPecial bail-
If the insolvent omit to plead his discharge, the Court ■will not relieve him, after he is taken in execution. Cross v. Hobsen, 2 Caines’ 102. It is true an insolvent, after . a continuance has passed, has, on payment of costs, been allowed to plead his discharge nunc pro tunc. Morgan & Smith v. Dyer, 9 Johns. Rep. 255, 256. 1 Chitty, 63.— This was before execution. But what is the law where the insolvent obtains his discharge a few days before the judgment, and too short a time to give him an opportunity to plead it, and is taken in execution 1 Reason and equity unite in this, that there should be relief afforded some way or other. How shall it be done 1 My opinion has been that the defendant ought to be relieved from the execution : that the judgment should be set aside upon payment of costs, and that the defendant might be let in to plead his discharge. To this plea the plaintiff might reply fraud, and thus put in issue the legality of the discharge. This will be doing justice to both the plaintiff and defendant. The judgment might perhaps be allowed to stand as a security for the final result.
In this case the following order is made : Let the defendant be discharged from imprisonment under the ca. sa. upon filing good special bail. Let the judgment and default be set aside, and the defendant plead his discharge as of the term next after such discharge. The plaintiff to have leave to traverse or plead to the said discharge, and the defendant to pay all the costs which have accrued from the time he so obtained the discharge.