Bankruptcy
Shawe v. Wilmerden
1 Cole. & Cai. Cas. 424·New York Supreme Court·1805·NY
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Opinion
Shawe v. Wilmerden.
AFTER pleading the general issue, the defendant Obtained his discharge under the insolvent law. His then attorney, who had long since declined business, gave notice, that he would give this special matter in evidence. The action being now again proceeded in, application was made for leave to strike out the notice, and plead the discharge, as the mistake of the attorney formerly employed was the reason why it was not before done.
Harison, contra.
The known ru.le is, that an insolvent must plead his discharge. In the present ¿ose it ought to have been puis darrein continuance. It is a defence stricti juris and not to be favoured.
[MAJORITY — Per Curiam.]
Per Curiam.
Let the defendant, on payment of costs, have leave to withdraw his notice and plead the special matter, the plaintiff to be at liberty to discontinue without costs.