Majority
p. 55Joel Wolfe vs. Evert Wynkoop, imp. &c.
Headnote
Where defendant filed his petition as a bankrupt, before suit commenced, but discharged after judgment, the judgment was opened on terms, with leave to defendant to plead his discharge.Motion by defendant Wynkoop for a perpetual stay of proceedings on the fieri facias issued in this cause, on the ground that said defendant has been discharged as a bankrupt.—The action is brought on a promissory note signed by Defendant Wynkoop. Commenced on the 28th [57 January, 1843. Defendant did not appear and plead. Judgment perfected February 23, 1843. On the 14th January, 1843, defendant presented his petition as a bankrupt, including the note in this suit, and was discharged June 5th, 1843. No fraud alleged in the discharge.
S. F. Shepard, Hefts Counsel. Forbes & Sheldon, Hefts Attys.
J. Edward, Plffs Counsel. S. H. Terry, Plffs Atty.
The proper course seems to be in such a case, to open the judgment, and grant the defendant leave to plead his discharge on payment of costs.
Decision.—Ordered that said defendant be allowed to plead his discharge in bankruptcy, on payment of costs of judgment and seven dollars costs of opposing this motion. Plaintiff to have leave, in twenty days thereafter, to discontinue without costs.