Broome v. Beardsley
New York Supreme Court
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.
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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…
1Opinion of the Court
Per curiam, delivered by
Spencer, J.
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…
2Cited by2 opinions
- Walker v. BradleySupreme Court of Arkansas · 1840
- Wisheart v. Legro & McDuffeeSupreme Court of New Hampshire · 1856