p. 172Broome against Beardsley.Headnote
COVENANT on a sealed note, with a plea of non in= fregit conventionem.At the trial, after the jury were called, and placed in the jury-box, the defendant tendered a plea duly verified by affidavit, that he had puis darein continuance, under the act for giving relief in cases of insolvency, obtained his discharge, an exemplified copy of which, he produced. This being rejected as coming too late, he then offered in evidence, the discharge itself, as a bar to the plaintiff’s right of recovery. Against the reception of the testimony, it was insisted, that it was not admissible under the issue joined, nor without having been specially pleaded, or notice given. The points being reserved, a verdict was taken subject to the opinion of the court, whether it should stand, or a new trial be granted.
Woodworth for the plaintiff.
The plea, puis darein continuance, mustbe pleaded between the last, and the next continuance, into which it cannot be carried. Here the circuit was the next continuance, and the plea should therefore have been delivered before the first day. 3 Black. Com. 317. In no case can it be received after the jury are sworn. Paris v. Salkeld., 2 Wils. 138. The discharge could not be given in evidence, because the statute, 1 Rev. Laws, 434, allows of it only under the general issue, which is when the plea denies •r traverses the whole declaration. Imp• K. B. 324. That
p. 173before the court does not do so, for it admits the execution ox the instrument.
Boot contra.
The plea may be tendered at any time be» fore verdict. Pearson v. Parkins, Bull N. P. 310. 7 3ac. Abr. by Guillim 358. The reasons why it must not be on the day in bank are to be seen fully stated in 4. Bac., Abr. 143, 4. From hence we may lay it down, that any time before verdict is not too late. In the very case cited from Wilson, it was ruled that the court were bound to receive the plea ; for at nisi prius it cannot be determined whether it be good or bad ; the party must be driven to his demurrer. On the second point it will be unnecessary to answer. A general issue is that which concludes to the country, and denies the declaration of the plaintiff.
Woodworth in reply.
Saying that a plea oí puis darein con= tinuance, may be received before verdict, amounts only to its not being admissible after ; not that it may be tendered at any time before. If the event take place, so that it could not be availed of earlier, the doctrine applies ; as if after the commencement of the circuit, and before verdict.
Per curiam, delivered by
The case of Paris v. Salkeld, is decisive that a plea plus darein continuance is matter of right; and, if verified by affidavit, the judge at nisi prius has no discretion to accept it or riot, but is bound to admit it.
There is not a dictum to be met with that the plea was tod late. In the case of Pearson v. Parkins, cited in Buller’s Nisi Prius, 310, it was holden that it might be pleaded after the jury are gone from the bar, but not after they have given their verdict. The facts to warrant this plea, must have happened since the last, and before the next continuance. The last continuance is the return day of the venire facias, where the proceedings are in the ancient method ; the next continuance is the first day in bank thereafter, or the first day of the succeeding iei'rn. Continuances are from term to term. We are all of opinion that the plea was well pleaded and ought to have been received. The verdict must therefore be set aside without costs, and the plea tendered be filed nunc pro tunc, and be deemed parcel of the nisi prius record.