Hines v. Ballard

delivered the opinion of the court The question in this cause is, whether under the notice annexed to the pleas, containing the discharge only, it was competent to prove the prosecution, and residence of the insolvent, by the proceedings on file in the cleric’s office in Oneida county.

The principle is well established, and has been frequently recognised by this court, that, a discharge under the insolvent act might be pleaded, in the same manner as the proceedings of an interior court were allowed to be pleaded; and that it was sufficient to state enough to give the magistrate jurisdiction, &c. (Service v. Heermance, 1 Johns. Rep. 91. Frary v. Dakin, 7 Johns. Rep. 75.)

By the insolvent act of 1811, two things are necessary to give the commissioner jurisdiction; imprisonment or prosecution of the debtor, and a residence in the county for three months immediately preceding the time of presenting his petition. The same act, to secure to the insolvent the benefit of his discharge, authorizes him, if sued, prosecuted, impleaded, arrested, or imprisoned, to plead the general issue, and give the special matter in evidence upon and under a notice given with such plea, in which notice he is required to state that he has been discharged under that act, the recorder or commissioner who signed the discharge, of the city and county in which said discharge was obtained, and the date thereof.

The notice annexed to the general issue is in the nature of a special plea? and, although the same strictness is not required *494as in pleading specially, yet, to prevent surprise, the party can» not be allowed to give evidence of matter not contained in the notice. That, however, cannot be alleged in relation to the evidence now in question. The recognition of the discharge in this notice was strictly consonant to the directions of the statute; and the proceedipgs of the commissioner, filed in the clerk’s office, under the same statute, must be deemed a public record of the facts on which the discharge was founded. Due notice of this discharge necessarily involves an inquiry into those proceedings, sufficient to prevent surprise to the opposite party; they are a part of the discharge itself, and notice of it was also notice of the official act of the commissioner, upon which it was founded. The proceedings on file in the office were properly received in evidence ; and they go to show that the insolvent had been prosecuted, and that he resided in the county of Oneida, for three months preceding the time of presenting his petition, by which the jurisdiction of the commissioner is fully established; so that the defendant was entitled to the effect of his discharge, which,of course, is a sufficient and valid defence in this action. The defendant, consequently, is entitled to judgment.

Judgment for the defendant