West v. Stanley — 1 Hill & Den. 69

Majority

p. 69

West vs. Stanley.

Headnote

Matter of defence ill a justice’s court arising after issue joined, (e. g. a submission of the subject in controversy to arbitrators, followed by an award,) may be pleaded therein puis darrein continuance.

Pleadings in justices’ courts are not required to he strictly formal, no objection having been there interposed to them on that ground.

A submission to arbitrators of the subject matter of a pending suit, and an award thereon, puts an end to the suit; and the plaintiff’s remedy afterward is on the award.

Though a judge at the circuit may receive a plea puis darrein continuance, without proof of its truth; yet, it seems, he should reject it, unless verified in some way.

Where, on tendering a plea puis darrein continuance to a justice, the defendant offered to verify it by affidavit, and it was rejected on the ground that pleas of that nature could nót be received in a justice’s court; held, that the justice erred, and the judgment should be reversed, though no affidavit was, in fact, made.

On error from the Onondaga C. P. Stanley sued West in assumpsit, before a justice, and after issue joined, the cause was adjourned. On the adjourned day the parties appeared, and after a jury had been empanneled to try the cause, the defendant offered a plea, withdrawing- his former pleas, and alleging that the parties, since the adjournment

p. 70

had submitted the matters in controversy in the1 suit to arbitration, and that the arbitrators had awarded that the defendant should pay the plaintiff $8,16, which sum the defendant had tendered, and was still ready to pay the plaintiff. The defendant, on tendering the plea, offered to make affidavit of its truth, and to consent to an adjournment of the cause, if the plaintiff desired it. The justice overruled the plea. The cause proceeded, .and the jury found a verdict for the plaintiff for $25, on which the justice gave judgment. On' certiorari, the C. P. affirmed the judgment, and the defendant now brings error.

E. Forman, for the plaintiff in error.

B. D. Noxon, for the defendant in error.

The justice seems to have proceeded on the ground that a plea puis darrein continuance could not be received in his court; but in that I think he was mistaken. True, issue must, in general, be joined in justices’ courts, at the time of the first appearance of the parties. (2 R. S. 233, § 47.) But it was not intended by that provision to preclude the defendant from setting up matter of defence arising, as in this case, after the usual issue had been joined.

Pleadings in justices’ courts are not required to be very formal ; and this plea was good in substance. If there had been a submission of the matters in controversy in the suit to arbitration, the suit itself was at an end. The plaintiff’s remedy was on the award.

A judge may, it seems, receive a plea puis at the circuit, without proof of its truth, (Bancker v. Ash, 9 John. 250 ;) though he may, and I think always should reject a plea which is not in some way verified. Although the defendant did not actually make an. affidavit, he offered to do so; and as I understand the return, the plea was not rejected because the affidavit was not made, but because the plea itself was not admissible. In that, the justice erred.

Judgment reversed.