Jay's Case

(after disposing of the first objection on the authority of Hubbell v. Dana (9 How. Pr. R., 424), as having been waived in this case).—As to the second objection, the defendant can avail himself of it in the most ample manner, by .an answer to the suit already commenced. Another suit, to set it up affirmatively, cannot be necessary. If true, it furnishes a complete and perfect defence to the action, and should properly •be availed of as such there.

The order to show cause is therefore discharged, and the petition for a stay of proceedings in that suit denied, without costs.