Majority
p. 145David Ashworth et al. versus J. M. Wrigley. Oct. Term, 1828.
Headnote
Where the defendant has obtained a discharge under the act “ to abolish imprisonment for debt,” after the commencement of the suit, the plaintiff will be permitted to discontinue without costs,though the defendant, relying upon a defence to the/onn of the plaintiff’s action, offers to waive Ins discharge.Mr. D. Graham, for the plaintiffs in this cause, moved for leave to discontinue without costs, thé defendant having since the commencement of the suit, obtained a discharge under the insolvent act. [Laws N. Y.vol. 5. sess. 42. p. 115.]
The motion was opposed by Mr. Ketcham, for the defendant, upon the ground that the motive for discontinuing, was not founded upon the discharge, but upon the fact, that the action had been commenced in such a way, that it could not be sustained. The plaintiffs’ true remedy, he said, was by an action of account; but they had brought assumpsit, for goods sold and delivered, which could not be maintained.
The defendant, relying upon the defence presented by the form of action, was ready to waive the discharge altogether, and would stipulate not, to interpose it as a defence in any shape.
The motion must prevail as a matter of course, and is always granted by the Supreme Court in like cases. The only doubt originates in the defendant’s offer, to waive Ms discharge : but it does not appear, that he has any defence to the action, except as to its form. The court will not,' therefore, drive the plaintiff to the expense of a litigation, which can never draw in question the real merits between the parties. - ’
Motion granted[1]
[D. Graham, Jun, atty for the plffs. Ketcham & Fessenden, attys. for the defts.]
* Vide Honeywell v. Burns, 8 Cow. 121 . Merritt ads. Arden, 1 Wm. 91.