Majority
p. 246Lee vs. Phillips.
Headnote
The court will not give effect to a bankrupt discharge on motion, where the party might have pleaded it, but omitted to do so.Accordingly, where a defendant obtained his discharge during the pendency of the suit, and afterwards suffered judgment by default to be entered against him for not pleading, on which execution was issued; held, that the only relief to which he was entitled was to be let in to plead the discharge, on payment of costs.
Where the defendant is thus let in, the court will allow the plaintiff to discontinue without costs.
While this action of assumpsit was pending, and on the 30th of March last, the defendant obtained his discharge under the bankrupt act. On the 15th of May, the plaintiff entered the defendant’s default, perfected judgment, and subsequently issued execution.
R. W. Peckham, for the defendant, now moved for relief.
A. Taber, contra.
We never give effect to the discharge on motion where the defendant might have pleaded it;
p. 247
and here it might have been pleaded,[1] But we can relieve the defendant by setting aside the judgment oh payment of costs, and allowing him now to plead the discharge. If he does so, the plaintiff will then be entitled to discontinue without costs.
Ordered accordingly.
(a) (a) See Graham v. Pierson infra and the cases there cited in note (b).