Lee v. Phillips , 6 Hill & Den. 246 ( 1843 )

By the Court, Bronson, J.

We never give effect to the discharge on motion where the defendant might have pleaded it; and here it might have been pleaded, ^(a) But we can relieve the defendant by setting aside the judgment oh payment of costs, and allowing him now to plead the discharge. If he does so, the plaintiff will then be entitled to discontinue without costs.

Ordered accordingly.

(a) See Graham v. Pierson infra and the cases there cited in note (b).