Peebles v. Kittle

2 Johns. 363

• Court: New York Supreme Court
• Decided: August 15, 1807
• Status: Published

Opinion

Spenceii, J.

delivered the opinion of the court.-

The only questions presented for consideration áre'.; Whether the discharge from imprisonment is well pleaded,- and whether it forms a bar to the plaintiff’s recovery.As to the form of pleading, the decision in Service vv Ueermance

* establishes the point, that it is sufficient, in setting forth the proceedings of an inferior court, after giving to it jurisdiction, to say taliter procession fuit, such an act was done by the court. The authorities cited in case, and particularly the case of Landbroke v. James,† fully show that the point is considered at rest in the British courts. It appears by this plea, tha.t the court had jurisdiction, as the defendant was in gaol on a ca. sa. issuing out of that court.

As to the remaining point, the 7th section of the act relied on, (1 ml. Rev.'Laws, 294.) declares, “that no prisoner who shall bo so discharged, by virtue of this act, on such petition, shall ever after be arrested for the same debt or debts, nor shall any action of debt be brought against him on any such judgment, unless he shall, under this act, be convicted of wilful perjury.” Against the positive and plain declarations of the statute, it is impossible for the court to enter into any such considerations-as aré set up in the replication. This may be a casus omissus, but it is not for us to supply the omission. The plaintiff, except there has been perjury, which he alone could have replied, can have no ot her remedy than by suing out his new execution. The defendant must have judgment, (a.)

Judgment for the defendant.

1 Johnson, 92.

Willes,201.

In a plea of discharge under the insolvent act, it is sufficient, after stating enough to give jurisdiction to the judge granting the discharge to say, “that such proceedings were thereupon bad/' &c. that the judge granted the discharge, setting forth the same verbatim Roosevelt v. Kellogg, 20 John. 208.