Lackey and Briggs against M'Donald

Lackey and Briggs against M’Donald. "When a defendant commits a crime for which he is sentenced to the state prison, the plaintiff may discontinue without payment of costs. The plaintiffs, in July, 1802, had stipulated to try this cause at the next circuit court, and did not do so. M. B. Hildreth, on this ground, now moved for judgment as in case of nonsuit. Schoenhoven read an affidavit, which was not denied, stating that the defendant, after the commencement of the suit, and before a trial could be had, was sentenced to the state prison, where he still remained, and prayed to discontinue without payment of costs. Van Ness, amicus curiæ, mentioned, that when the defendant rendered proceedings useless, the court was always disposed to permit a plaintiff to discontinue without costs. In Jackson, on the demise of Ludlow, v. Webb, after issue joined, the defendant abandoned the possession, and the lessor of the plaintiff having entered, did not notice the cause for trial. The defendant then moved for judgment as in case of nonsuit, but the court denied his motion, and gave leave to discontinue without payment of costs. As to discontinuing without costs, see also Case v. Beffmap, 5 Cow. 422; Honeywell v. Bwns, 8 Cow. 121; Helenwoth v. Wrigley, 1 Hall, 145; Labron v. Woram, 5 Hill, 373; Fifield v. Brown, 2 Cow. 503; Ludlow v. Haskett, 18 J. R. 252; Van Buren v. Fort, 4 Wend. 209; Arden v. Merritt, 1 Wend. 91; Camp v. Gifford, 7 Hill, 169. [MAJORITY — Per Curiam.] Per Curiam. The opinion of the court is, that sufficient has been shown to prevent the judgment of nonsuit. The defendant has by his own act deprived the plaintiffs of that ^remedy which they might have had [*117] against his person; his body is out of their reach, and that by his own act. It is not, therefore, necessary that they should proceed and incur expenses for nothing, as there is not any property from whence they can be reimbursed. The plaintiffs, therefore, are entitled to discontinue, and without costs. Motion granted. Radcliff and Livingston, Justices, absent. In civil cases, the principle of this decision is adopted. Whenever, therefore, a defendant has obtained his discharge under an insolvent law, the plaintiff may discontinue without costs. Story v. Hart, 1 Johns. Rep. 143. But unless the discharge be obtained he will not, for mere insolvency is nc ground for discontinuing as a right. Collins v. Evans, 6 Johns. Rep. 333. See Shawe v. Wilmerden, 2 Caines’ Rep. 380.