Merritt v. Arden — 1 Wend. 91

Majority

p. 91

Merritt ads. Arden.

Headnote

Aplaintiftmay discontinue without costs, if the defendlAsolvenT'dS charge, after ed, though the be trci

Motion for judgment as in case of nonsuit. This cause was tried at the May circuit, in Putnam, in 1826, when the •’ plaintiff was nonsuited. In August, 1826, the defendant obtained an insolvent’s discharge. At the February term, 1827, the nonsuit was set aside, and a new trial granted. Previous to the last circuit, the plaintiff offered to discontinue without costs, which the defendant refused, and now applies for judgment as in case of nonsuit. The plaintiff insists upon the right to discontinue without costs, on account of the defendant’s discharge, and his utter inability to pay any judgment

p. 92

that might be rendered against him. The defendant objects to the plaintiff’s discontinuing upon those terms, inasmuch as the action is trespass, and his discharge would be no protection to him, in case judgment was obtained against him.

W. Todd, for defendant.

W. Kelson, for plaintiff.

By the Court,

The nature of the action does not affect the rule of proceeding in cases of this kind» When a defendant obtains an insolvent’s discharge, after the commencement of a suit, the plaintiff is allowed to discontinue without costs, on account of the conclusive evidence of the poverty of the defendant afforded by the discharge. As, however, the plaintiff has proceeded in the suit, after the defendant obtained his discharge, he must pay the defendant’s costs of such proceeding. The plaintiff, therefore, has leave to discontinue, on payment of such costs, which, if he neglects, the motion of the defendant will be granted.