Majority
p. 310Field and Smyth vs. Goodman.
Headnote
fence^ariskig after issue mediate ™the term and the be plead at the circuit. A plea puis darrien under such circamoUiTser ved" in vacatlon‘Motion to set aside an inquest. The issue in this cause-was joined on the sixth day of August. On the eleventh, not’ce °f trial was given for the Albany circuit, to be holden on the first Tuesday {first day) of September. On the thirty first day of August, a plea puis darrein continuance, setting forfo a release executed by Field, one of the plaintiffs, on the , , , , „ , twenty-sixth day oí August, was served on the agent or the pl^Hti®’ attornies at Utica, they residing at Albany. On the seventh day of September, no plea of puis darrien having been filed with the clerk of the circuit, an inquest was taken.
A. R. Tiffany, for defendant.
King Sp Denniston, for plaintiffs.
By the Court,
The matter of defence arising after issue joined, intermediate the term and the circuit,’ ought to have been plead at the circuit; and for this there is a good reason, as it is discretionary with the judge whether he will accept the plea of puis darrien ox not. It was irregular,, therefore, to serve the plea in vacation. As, however, the party swears to merits, the inquest will be set aside, on payment of costs.