
    Stebbins against Willson.
    NEW-YORK
    October, 1817.
    Where a party afterwards obtains a discharge as an insolvent, and then judgment, as in case of nonsuit, is renderedagainst him for not going to trial, his discharge is not a bar to an action to recover the costsontbat judgment.
    IN ERROR, on Certiorari to a justice’s court.
    The plaintiff in error brought an action against the defendant in error, in the court below, for the costs of a judgment of non-suit, in the court of common pleas, of Saratoga county, in a suit commenced by the present defendant against the plaintiff, in August, 1811. In December, 1812, the defendant in this suit was duly discharged as an insolvent, and, in August, 1816, judgment, as in case of nonsuit, was rendered in the court of common pleas, against the defendant for not proceeding to trial in the cause in which he was plaintiff. The only question was, whether the defendant’s discharge was a bar to the action for these costs. The justice gave judgment for the defendant.
   Per Curiam.

The judgment must be reversed. The judgment of nonsuit was entered after the discharge under the insolvent act, and could not, therefore, in any wise, be considered a demand existing prior to the discharge. In Cone v. Whitaker, (2 Johns. Cas. 280.) the judgment of nonsuit was entered prior-to the discharge, but the costs were not taxed until after the discharge; it was held, even there, that the costs were not a debt until taxation, and of course not affected by the discharge. In the case of Warne v. Constant, (5 Johns. Rep. 135.) this rule seems to be shaken. It is there held, that where the judgment of non-suit is before the discharge, although the roll may be signed, and costs taxed afterwards, still the costs are barred by the discharge. But, in the case now before us, the judgment of nonsuit was obtained after the discharge, and no case has'been found where the costs, under such circumstances, are deemed to be affected by the discharge.

Judgment reversed.  