
    Reeder, Assignee of H. Seely, an Insolvent Debtor, against B. Seely.
    One who sues en autre droit, in good without *k°proper grounds, may discontinue without costs.
    jE g. The assignee of an insolvent debtor.
    Asgill Gibbs, moved for judgment as in case of nonsuit,
    
      W. M. Oliver, contra,
    read affidavits showing that at the time of H. Seely’s discharge, the defendant was and still is insolvent, and utterly unable to pay the demand sought to be recovered by this action, though not actually discharged under the insolvent act, which was unknown to the plaintiff when the suit was commenced; and moved for leave to discontinue without costs.
    
      Gibbs,
    
    in reply, said that the plaintiff should not be allowed to do this, after the defendant had appeared.
   Curia.

The plaintiff sues en autre droit ; and for the purposes of this motion stands on the same footing as an executor, who may discontinue without costs. The motion must be granted.

Motion granted. 
      
       Vid. Phanix, admr. v. Hill,.(3 John. Rep. 249.)
     