The'bankruptcy of the defendant having been suggested, the plaintiff moved to strike the defendant’s name from the suit, without payment of costs.
The court ruled that c. 157 of the statutes of 1868 did not apply where there was but one defendant in the writ, and denied the plaintiff’s motion.
By c. 157, § 1, it is provided that “ where it shall appear that the defendant, or any one of the defendants, has filed his petition in *417bankruptcy, either before or after the commencement of the suit, the action shall be continued unless the plaintiff shall thereupon strike out such bankrupt defendant’s name from the suit, which he may do without costs.”
The statute specially provides for the case of one or more defendants. It is in the alternative. If the words “ or any one of the defendants ” were striken out, it would then apply to the case of a single defendant, and would authorize the striking out of his name without cost, in express terms.
The language is not technical, but it was the intention of the legislature that a defendant, whether alone or one of many defendants, taking advantage of his bankruptcy, should not recover costs, if the plaintiff should elect to strike his name from the writ. The striking the defendant’s name from the writ is a discontinuance as to him. It was not necessary that the technical term, discontinuance, should be used. The intention of the legislature is manifest. It was that there should be one and the same rule of law, whether there was a single defendant, or many.
The report does not show by whom the suggestion of bankruptcy was made, but as it was to be made by the defendant if he relied upon it, and as it is not for the plaintiff to make it for him, the presumption is, that it was made by the defendant.
Exceptions sustained.
Walton, Barrows, Danforth, Tapley, JJ., concurred.