Lackey v. M'Donald

1 Cai. Cas. 116, 1 Cole. & Cai. Cas. 190

• Court: New York Supreme Court
• Decided: August 15, 1803
• Status: Published

Opinion

Per Curiam.

The opinion of the court is, that sufficient has been shown to prevent the judgment of nonsuit. The defendant has by his own act deprived the plaintiffs of that ^remedy which they might have had [*117] against his person; his body is out of their reach, and that by his own act. It is not, therefore, necessary that they should proceed and incur expenses for nothing, as there is not any property from whence they can be reimbursed. The plaintiffs, therefore, are entitled to discontinue, and without costs.

(a)

Motion granted.

Radcliff and Livingston, Justices, absent.

In civil cases, the principle of this decision is adopted. Whenever, therefore, a defendant has obtained his discharge under an insolvent law, the plaintiff may discontinue without costs. Story v. Hart, 1 Johns. Rep. 143. But unless the discharge be obtained he will not, for mere insolvency is nc ground for discontinuing as a right. Collins v. Evans, 6 Johns. Rep. 333. See Shawe v. Wilmerden, 2 Caines’ Rep. 380.