Majority
p. 639Tuffs vs. Gibbons. ALBANY, March, 1839.
Headnote
Matter of defence arising after issue joined should regularly be pleaded at or b= before the time of the next continuance; a plea subsequently put in will however be sustained upon satisfactory excuse, but if it appear that the defence rests in fraud, it will be stricken out.' Motion to set aside a plea of accord and satisfaction, March, 1839. pleaded puis darrein continuance on the hearing of the
p. 640
cause before a referee. There had been several continuances between ¡¡me that the matter of the plea arose and the time of pleading it.
A. Taber, for the motion.
M. T. Reynolds, contra.
By the Court,
Matter of defence which arises after issue joined should be pleaded at or before the time of the next continuance. But the court may in its discretion allow it to be pleaded, although one or more continuances have intervened. Morgan v. Dyer, 9 Johns. R. 255. 10 id. 161. In this case the accord which is pleaded was made between the defendant and the plaintiff’s attorney, after they both had notice that the demand had been assigned by the plaintiff to one Chapman. On the papers submitted it is a plain case of a fraudulent attempt to defeat the right of the assignee. The plea must therefore be set aside with costs.
Motion granted.