Majority
p. 166Cook & Kane against Mancius & Visscher. Oct. 16th.
Headnote
Where the defendants pleaded certain outstanding judgments, and the Court gave leave to the plaintiff to amend their bill, by making the judgment creditors parties; and, subsequent to the order, the judgments were satisfied and discharged, and the plaintiffs, instead of amending their bill, replied, taking issue on the plea: the Court ordered, the plaintiffs to pay the costs of the plea and of the subse* quent proceedings, in thirty days, or that the bill stand dismissed, with costs ; but if the costs were so paid, then the defendants to answer the bill in six weeks, or that it be taken pro confess».THE defendants pleaded in bar certain outstanding judgments, and that those creditors ought to have been made parties to the suit.
The plaintiffs, instead of amending their bill, by making those creditors parties, upon the terms directed by the Chancellor, (vide S. C. v. 3. p. 427.) traversed the plea, by replying and taking issue upon it, and putting the defendant to prove it.
The cause came on to be heard upon the proofs taken under that issue.
W. A. Duer, for the plaintiffs.
J. V. N. Yates, contra.
held, that the testimony very clearly established the truth of the plea at the time it was filed, and the issue was to be considered as referring to that period. It appeared, that the judgments had been discharged, and satisfied subsequent to that period. It was thereupon ordered, that the plaintiffs, within thirty days, pay the costs of the plea, and of all subsequent proceedings, or that the hill
p. 167
stand dismissed, with costs; and that if the costs were so paid, that the defendants should then answer the bill, within six weeks, or that the bill he taken pro confesso against them.