Park v. Moore
Court for the Trial of Impeachments and Correction of Errors
After this suit was commenced, the defendants made application for discharge under the bankrupt act, and both of them were decreed and declared bankrupts by the district court of the U. S., but neither had yet obtained his certificate of discharge.
1Opinion of the Court
By the Court,
Bronson, J.
When the defendant, after suit brought, obtains a discharge under an insolvent law, the plaintiff will be allowed to discontinue without costs. (1 John. R. 143 ; 2 id. 294; 18 id. 252 ; 2 Cowen, 503; 8 id. 121; 1 *593Wend. 91,2; 1 Caines, 116.) But the motion will not be granted unless the defendant has obtained his discharge. (Collins v. Evans, 6 John. 333.) The reason for this I take to be, that the court will not try the question of insolvency on affidavits. The plaintiff is not relieved on the ground that the defendant may defeat the action by pleading the discharge ;…
2Cases cited3 opinions
- Lackey v. M'DonaldNew York Supreme Court · 1803
- Collins v. EvansNew York Supreme Court · 1810
- Merritt v. ArdenNew York Supreme Court · 1828