Broome v. Beardsley — 1 Cole. & Cai. Cas. 493

Majority

p. 493

Broome v. Beardsley.

Headnote

COVENANT on a sealed note, with a plea of non infregit 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 darrein 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

Moot, contra.

delivered by Spencer, J, The case of Paris v. Salkeld, is decisive that a plea puts darrein continuance is matter of right; and, if verified

p. 494

by affidavit, the judge at nisi.pr'ms has no discretion to accept it or not, but is bound to admit it.

There is no dictum to be met with that the plea was too late. In the case of Pearson v. Parkins, cited in Bulleds 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 term. 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 tune, and be deemed parcel of the nisi prius record.