Majority
p. 169Camp vs. Gifford and Seymour.
Headnote
Where the defendant obtains a bankrupt discharge after suit brought, the plaintiff will be allowed to discontinue without costs. Per Bronson, J.Otherwise, however, if the discharge be obtained before suit brought. Per Bronson, J.
In assumpsit against G. and S. as joint debtors, both of whom were served with process, they united in a plea of non-assumpsit, and S. pleaded a bankrupt’s discharge granted before suit brought Held, that the plaintiff could not be allowed to discontinue as to S. except on payment of costs.
In assumpsit against the defendants as joint debtors, both having been served with process, they united in pleading nonassumpsit ; and the defendant Seymour put in a further plea of a bankrupt’s discharge, which was granted before the suit was commenced.
A. Sheldon, for the plaintiff,
moved for leave to enter a discontinuance or nolle prosequi as to Seymour, with liberty to continue the proceedings against Gifford.
D. S. Dickinson, contra.
As the discharge was obtained before suit brought, the plaintiff must pay Seymour’s costs.
By the Court,
When the defendant obtains a bankrupt or insolvent’s discharge after suit brought, the plaintiff is allowed to discontinue without costs,[1] But I see no principle on which the plaintiff can be excused from paying costs where the discharge was obtained before the action was commenced. It is true that, in the case of "joint debtors, the suit must be brought against all, although one may have some matter going to his personal discharge; and then if such matter be pleaded, the plaintiff may enter a nolle prosequi as to that de
(a) (a) See Lee v. Phillips, ( 6 Hill, 346 ;) Sandford v. Sinclair, (id. 248.)
p. 170
fendant, and proceed against the others. (Bovill v. Wood,. 2 Maule & Selw. 23; Moravia v. Hunter, id. 444; Hawkins v. Ramsbottom, 6 Taunt. 179; Noke v. Chiswell, 1 Wils. 89; Hartness v. Thompson, 5 John. R. 160.) But although the plaintiff was obliged to join all, he might have omitted to serve the process or declaration on the bankrupt, and then there would have been no question of costs. As Seymour has been brought into court, and put to the expense of pleading his discharge, he is entitled to costs, including those of opposing the motion. The motion is granted on those terms.
Rule accordingly.