Ludlow v. Hackett — 18 Johns. 252

Majority

p. 252

Ludlow against Hackett.

Headnote

Where a defendant obtains a discharge under the oxtifor the relief of debtors mth respect to the imprisonment qf their persons, (i ¿V. R. L. 348) or under the act to abolish ' AV\''n ment for debt, in ceriam cases) passed ipril 7, 181b ,v.v>. 42. ch _ iOl) the plaintiff may discontinue his suit without Sutifiie p?ain-tiffknowmg of the defendant s discharge,proceeds in the cause,hemust, if he after-wards disco»-cosirkccrang charge*6 dls’

THE defendant was' arrested in May, 1819, at the suit of the plaintiff, for 2,000 dollars ; and in July following, was regularly discharged, under the act to abolish imprisonment for debt, in certain cases, passed April 7, 1819. (sess. 42. 101.) After the discharge, the attorney for the plaintiff entered the default of the defendant for not pleading, and af-terwards entered an interlocutory judgment, and had the damages assessed, on a.writ of inquiry. The inquest was set aside in May term with costs, on the ground that the damages assessed wereona partnership account of the plaintiff and one Lambert, in June, the plaintiff’s attorney entered a rule fora discontinuance, and gave-notice thereof to ^le defendant’s attorney, on the ground of the defendant’s discharge as an insolvent debtor under the said act, but re- ^ ° 7 fused to pay costs* The defendant’s attorney then gave no- i t . J ° tice, that unless the plaintiff proceeded to execute a writ of . . . , . , . . . , , , . inquiry in the cause, in thirty days, a motion would be made for judgment of nonpros. A motion was accordingly made for a judgment of non pros.

T. A. Emmet, for the defendant.

p. 253

Garr, contra.

In Heffernan v. Brown, we decided, at the last term, that where a defendant obtains a discharge under the act giving relief in cases of imprisonment, the plaintiff might discontinue his suit without costs, in the same manner as if the defendant had been discharged from all his debts under the insolvent act. If the plaintiff, knowing of the defendant’s discharge, will, nevertheless, go on with the suit, he must, if he afterwards discontinues, pay costs. Let the plaintiff have leave to discontinue his suit on payment of the costs of suit since the defendant obtained his discharge under the late act, and up to the time of the entry of the rule for a discontinuance, exclusive of the costs of the application made at the last term.

Rule accordingly.