Honeywell v. Burns , 8 Cow. 121 ( 1828 )

Curia.

The motion must be granted. We do not proceed in cases like this on the idea that the defendant may ^defeat the plaintiff by pleading his discharge; but on his plain inability to pay, evinced by the discharge, on account of insolvency. ^[1]

Motion granted.

[1] 6 Cowen, 422 ; 2 id. 503; 8 id. 121; even although the action be trespass ; (1 Wendell, 191;) or, although the defendant offer to waive his discharge. 1 Hall, 145. The reason of the rule being founded on the conclusive evidence of the poverty of the defendant, afforded by the discharge. 1 Wendell, 92.

If) however, tee plaintiff proceed in the action, after the. defendant has obtalne.tj his discharge, he will be required to pay the costs of such subsequent proceedings. Ib. But in a. very recent case, in tee Exchequer in England, where the plaintiff declared, in order to avoid the costs of a no» pros., and¡ went on with the cause as far as- giving a, peremptory undertaking to try, qR. te9 while knowing teat, tee defendant, was. insolvent, that court - refused, to, discharge the peremptory undertaking. 1 Tyrwh. 1. So, also, after a pleq in abatement; tee plaintiff will be allowed to discontinue without costs; and if in such case a'second suit be brought, and the defendant plead another adr tion pending, the.-discontinuance may be entered of course, at any time h,6.-> fore replication, 1 Johns. Cas. 398; S. C., Coleman, 97, So the plaintiff wilt be permitted to discontinue without costs, where the defendant has been sentenced to the state prison, (1 Caines, 116,) or where the defendant is a minor, and obtains goods on credit, and when sued, interposes the plea of infancy. 4 Wendell, 409; see 1 Cowen, 417.

In a late case, also, in England, where goods had been obtained by fraud, and the plaintiff commenced an action against the party who obtained them, and other persons represented to be his partners, but who could not be found, leave was given to discontinue the first action without costs, and to detain tee defendant in custody until the plaintiff had issued a new writ, and declared against him alone. 2 Dowl. Pr. Cas., 35. But, in a case in this court, tee plaintiff was not permitted to do. so, because the defendant had enlisted m the army of the United States, it not ap,pearing that the sum claimed amounted to less than twenty dollars. 3 Johns. Rep. 446; ante. 133; see also 2 Wash. C. C. Rep. 270.