Let the defendant, on payment of costs, have leave to withdraw his notice and plead the special mátter; the plaintiff to be at liberty to discontinue without costs.
Motion granted.(a)
The rule is, that where a defendant, before judgment, shows to the court that he has obtained his discharge under an insolvent law, he will, though by strict practice too late in his application, be permitted to plead it, on paying costs. Broome v. Beardsley, 3 Caines’ Rep. 172; President and Directors of the Merchants' Bank v. Moore, 2 Johns. Rep. 294; see Lackey & Briggs v. M'Donald, Caines’ Rop. 117, n. (a.)