Majority
p. 239John B. Carter vs. Francis Goodrich.
Headnote
A defendant will be allowed to plead his bankrupt discharge, on terms, after default, where he delayed to plead it previous to default.Motion by defendant to set aside default and for permission to plead his bankrupt discharge.—This was an action of debt on judgment; commenced after defendant had filed his petition and pending the pro-' ceedings for his discharge. Defendant’s attorneys served on plaintiff’s attorney a notice, that in case defendant’s default was entered, a motion would be made, on the defendant obtaining his discharge, to open the default and set aside all subsequent proceedings on the part of the plaintiff therein; this notice was served on the 23d Sept., 1843. Defendant got his discharge on the 14th of Dec., 1844; his default was entered on the 3d March, 1845, and notice of assessment of damages served for 26th April, 1845.
P. Cagger, Defts Counsel. Benedict & Boardman, Defts Attys.
H. Harris, Plffs Counsel. F. Sayre, Plffs Atty.
Plaintiff insisted that defendant having obtained his discharge more than two months previous to the default, he should have pleaded it.
Granted the motion on payment of the costs of default and subsequent proceedings, and costs of opposing the motion.