Majority
p. 373Labron & Ives vs. Woram. moved for leave to discontinue the writ of error without costs, on an affidavit stating that, since the filing of the joinder in error, the defendant, Woram, had been discharged as a bankrupt. He cited and commented on Hart v. Storey, ( 1 John. Rep. 143 ;) Case v. Belknap, (5 Cowen, 422;) Honeywell v. Burns, (8 id. 121.) said the doctrine of the cases cited was inapplicable to proceedings upon writ of error, and that no precedent could be found for this motion.
Headnote
Where a defendant in error against whom the plaintiffs brought a suit in the court below to recover an alleged debt arising upon contract, was discharged as a bankrupt during the pendency of the writ of error, the court gave the plaintiffs leave to discontinue without costs.Motion for leave to discontinue without costs. After judgment rendered in the supreme court against the plaintiffs, (see 1 Hill, 91 et seq.,) they brought error to this court; and now,
A. Thompson, for the plaintiffs,
J. W. Gerard, contra,
observed that, in his opinion, the case came within the principle of the rule allowing a plaintiff to discontinue without costs on showing that the defendant has been discharged as a bankrupt or insolvent after suit brought.- Here, if the plaintiffs succeed, they will be unable to collect any thing; and the motion should therefore be granted.
All the members of the court who heard the argument being of the same opinion,
Motion granted.