Merritt v. Arden

1 Wend. 91

Opinion

By the Court,

Savage, Ch. J.

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.