Sandford v. Sinclair — 6 Hill & Den. 248

Majority

p. 248

Sandford vs. Sinclair.

Headnote

Judgment having been obtained against the plaintiff upon a nonsuit ordered at the circuit, he brought error, and the defendant wad afterwards discharged from the alleged cause of action under the bankrupt law. fleZd, that the plaintiff was not entitled to an order allowing him to discontinue the suit without costs, until he succeeded in reversing the judgment.

In such case, however, the plaintiff may obtain leave to discontinue his writ of error without costs, on application to the court for the correction of errors. See note (a),

"Where, by reason of the defendant having been discharged as a bankrupt, the plaintiff becomes entitled to discontinue without costs, he will be allowed to do so though the defendant offer to stipulate that he will waive the benefit of his discharge. Per Bronson, J.

p. 249

Sandford, the plaintiff, brought several actions of covenant in this court, all depending upon the same questions, of which one was against Halsey, and another against the defendant, Sinclair. In June, 1842, the action against Halsey was tried, and the plaintiff' nonsuited. He took a bill of exceptions, and a stipulation was entered into in all the causes that if a new trial should be denied in the case of Halsey, then the defendants in each of the other suits might enter a rule for judgment as in case of nonsuit, and might perfect judgment, unless the plaintiff" should bring a writ of error in the Halsey case within thirty days after judgment perfected therein; and if error was thus brought, then the other causes to “stand as they now do” until the decision of the Halsey case in error. The stipulation further provided that, if the judgment of this court in the Halsey case should be affirmed, then judgments as in case of nonsuit might be perfected in each of the other causes; but if this court should order a new trial in the Halsey case, or if a new trial should be denied, and the judgment should afterwards be reversed in error, then the other causes to “ stand for trial as they now do.”

At the May term, 1843, a new trial was denied in the Halsey case, and judgment for the defendant having been perfected, the plaintiff, within thirty days, brought a writ of error, which is . still pending. Since the writ of error was brought, the defendant Sinclair has obtained his discharge as a voluntary bankrupt.

P. Cagger, for the plaintiff,

moved for leave to discontinue this suit without costs, unless the defendant stipulate, within sixty days, not to plead or set up his discharge under the bankrupt act as a defence. He cited Grah. Pr. 604, 5; Honeywell v. Burns, (8 Cowen, 121;) Ashworth v. Wrigley, ( 1 Hall’s R. 145 ;) Arden v. Merritt, ( 1 Wend. 91 ;) Park v. Moore, ( 4 Hill, 592 ;) 7 Lond. Jurist Rep. 67.

D. Burwell, for defendant.

The motion is premature. As the case now stands the defendant has, in effect, recovered a

p. 250

judgment for costs against the plaintiff. If the judgment in the Halsey case shall be reversed, the plaintiff may then move for leave to discontinue without costs, on the ground of the defendant’s bankruptcy.

Taking our decision in the Halsey case in connection with the stipulation between the parties, we have, in effect, rendered judgment against the plaintiff upon the whole merits of the controversy; and in that state of the cause we think the plaintiff should not have leave to discontinue without costs. I do not find that the motion has ever been granted under such circumstances.^[1] If the Halsey judgment shall be reversed, the plaintiff will then be entitled to discontinue without costs; and the motion will be granted although the defendant should waive the benefit of his bankrupt’s certificate. So are the cases.

Motion denied.

(a) (a) In such case, however, the plaintiff may obtain leave to discontinue his writ of error, without costs, on application to the court for the correction of errors. (Labron & Ives v. Woram, 5 Hill, 373 .)