Foord's Case

By the court. It is not disputed in this case, that the prisoner was regularly discharged from his imprisonment, under the execution which issued upon the first judgment by taking the poor debtor’s oath ; and the question is, whether, in order to protect his body from arrest, it was necessary that lie should plead, in the action upon the judgment, his discharge in bar of an execution against his body ; or whether the plaintiff was bound at his peril to take out a proper execution upon the second judgment ? - On behalf of the creditor, it is insisted, that the debt- or ought to have pleaded his discharge ; and not having done this, he has lost the benefit of it; and the practice of the English courts, under the statutes of insolvency, is supposed to sustain this course. It is very clear, that in England, and in New-York, it is necessary, in certain cases,, to plead a discharge under statutes of insolvency in bar of an execution against the body. 3 Cowen, 13, Robertson v. Crowell; 6 ditto, 596, Campbell v. Palmer; 1 Johns. Cases, 133, Valkenburgh v. Dederick; 8 East, 55, Bell v. Saunderson; 1 D. & E. 81, Buxton v. Murdin; 3 Taunt. 237, Winstanley v. Head; 18 Johns. 54, Post v. Riley. But in New-York, where a party has had no opportunity to plead his discharge, he may be relieved upon motion. 4 Johns, 191, Baker v. the Judges of Ulster county; 1 Cowen, 165, Baker v. Taylor; 1 Cowen, 42, Palmer v. Hutchins. When, however, the validity of the discharge is in question, the court will not, in New-York, try the validity upon affidavits. 9 Johns. 253, Noble v. Johnson. And in England, the courts relieve, upon motion, in some cases, a prisoner who has been arrested after a discharge under an act of insolvency. 3 Bos. & Pul. 394. Sharpe v. Iffgrave ; 3 B. & P. 185, Edmunson v. Parker; 8 D. & E. 49, Kinnaird v. Barrow. In this state, and in Massachusetts, when a prisoner [313] has been liberated from imprisonment upon an execution by taking the poor debtor’s oath, and a suit is to be af-terwards commenced upon the judgment, the practice has been to sue out a writ, directing the sheriff to attach the goods and estate of the debtor, and summon him to appear and answer to the action ; and after judgment, to take out execution against the goods and estate, and not against the body of the debtor. 3 Mass. Rep. 193, Cook v. Gibbs; 1 Pick. 497, Wellington v. Stearns. We are not aware, that it has ever been held necessary that a debtor, who has been thus discharged, should, in a subsequent suit on the judgment, plead his discharge in bar of an execution against his body. The settled practice is, to let the plaintiff take out a proper execution at his peril. If, in this case, there was any dispute as to any fact essential to the validity of Foord’s discharge, we might, perhaps, be disposed to leave him to his remedy by audita querela. 2 Saund. 148, and note 1 ; Com. Dig. “Audita querela A 10 Mass. Rep. 101, Lovejoy v. Webber; 14 ditto, 443, Little v. Newburyport Bank; 17 ditto, 153, Brackett v. Winslow ; 4 Burr. 2287. But the validity of his discharge is not questioned, and we have no hesitation in setting aside the execution on motion. Execution set aside, and prisoner discharged.