
    Park and another vs. Moore and another.
    Where a defendant, after suit brought, obtained a decree for his discharge as a bankrupt, the court permitted the plaintiff to discontinue without costs, though a certificate of the defendant’s discharge had not yet been granted.
    
      H. Everts moved that the plaintiffs have leave to discontinue without costs.
    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.
    
      H. H. Martin, contra.
   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 Wend. 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 ; but on the ground that the discharge affords conclusive evidence of the defendant’s inability to pay. (Honnewell v. Burns, 8 Cowen, 121; Merritt ads. Arden, 1 Wend. 91.) Here, both of the defendants have solemnly declared themselves bankrupts, and we have besides conclusive evidence of the fact in the decree of a court of competent jurisdiction. Although the defendants have not obtained their certificates, the case falls within the principle of those in which the plaintiff has been allowed to discontinue without costs.

Motion granted.  