Goward v. Dunbar , 58 Mass. 500 ( 1849 )

Fletcher, J.

This case comes before the court by exceptions from the court of common pleas. At the June term, 1849 the plaintiff filed a motion in that court for leave to discontinue against Bernard P. Dunbar, solely on account of his pleas of bankruptcy and insolvency. The court refused to allow the motion, on the ground that the same had not been made in season, and for other reasons. The only reason disclosed, and of which notice can be taken by the court, for refusing to allow the plaintiff to discontinue, is, that the motion was not made in season. But the case surely discloses no such delay, on the part of the plaintiff, as would deprive him of his legal right. The action remained good against Peter E. Dunbar, and was therefore properly con ■ tinued, notwithstanding the discharges set up by Bernard P. Dunbar. Shortly after the action was settled with Peter, the plaintiff moved to discontinue as to Bernard, and it does not appear, that any measure was taken or any desire expressed, on the part of the defendant, for any early action on the part of the plaintiff. The simple question, therefore, is, whether the plaintiff had a legal right to discontinue solely on the ground of the discharges set up by the defendant. The St. of 1843, c. 55, provides, that “ In all civil actions, in which the bankruptcy of the defendant shall be pleaded, and such action shall be discontinued, or the plaintiff nonsuited, solely in consequence of such plea, the defendant shall recover no costs against the plaintiff.” The subsequent statute of 1848, c. 267, provides, that “ Whenever the defence is made to rest on a discharge in bankruptcy or insolvency alone, and an issue is made up in writing to that effect, and found for the defendant, he shall recover his costs from and after such joinder of issue.” By the statute of 1843, the plaintiff had a legal right to discontinue. It is said that a discontinuance is always a matter for the discretion of the court. But it was not a matter of discretion under the circumstances of this case. The language of the statute very clearly implies a right to discontinue.

It is said, that the defendant had other grounds of defence than that of his discharge. But he put his defence solely on the ground of his discharge under the bankrupt law of the United States. The defendant might have waived his defence on the ground of his discharge, and put himself on other grounds, and thereby have taken his case out of the operation of the statute. The plaintiff moved the court, that the defendant might be required to waive his defence on the ground of his discharge, and to rely on his other grounds of defence, if he insisted on going to trial, and the plaintiff was not permitted to discontinue. But the court refused this motion.

The court should either have allowed the plaintiff to discontinue solely on the ground of the discharge, or if the defendant insisted on going to trial, he should have been required to waive his discharge, and to proceed on his other grounds of defence.

It is said, that the plaintiff should have taken exceptions to the ruling, and not have gone to the jury. But he had no option. He was not allowed to discontinue, and was obliged to go to the jury; which cannot now preclude him from maintaining his exceptions.

Verdict to be set aside, and plaintiff to have leave to discontinue.