CHAPTER IX.

PLEAS PUIS DARREIN CONTINUANCE.

If any matter of defence arise, during the pendency of the suit, of which the defendant could not have availed himself, at its commencement, he may plead it to the further maintenance of the suit; as if the plaintiff give the defendant a release, or a feme sole plaintiff marry, pending the suit.'

These pleas are termed pleas puis darrein continuance, and may be in abatement, or in bar; - but judgment on the former is final, as well upon demurrer, as upon verdict, if a plea in bar had before been filed, for in pleas puis darrein continuance, there can be no judgment to answer over.2

These pleas are a waiver of all former pleas; and if the matter pleaded be found against the defendant, it is a confession of the whole declaration.1

These pleas may be pleaded at any stage of the cause, before the jury have returned their verdict; even after they have left the court to consider of it.5

The offer of this plea is a matter of right, it is said, and the court cannot refuse to receive it. It cannot,

1 Bull. N. P. 310. Bro. Ab. Continuance. pl. 57.

2 Freem. 252. Gilb. C. P. 105. Alleyn, 66. 1 Chitt. Plead. 635. Renner et al. v. Marshall, 1 Wheat. Rep. 215.

3 1 Salk. 178. pl. 5. 1 Chitt. Plead. 636. 2 Tidd's Pract. 765.

4 Cro. E. 49. 3 Black. Com. 317.

2 Esp. N. P. 577. Broome v. Beardsley, 3 Caines' Rep. 172. 12 Johns. Rep. 218. Bull. N. P. 310. 1 Chitt. Plead. 637. 2 Dunlap's Pract. 623.

Broome v. Beardsley, 3 Caines' Rep. 172. 1 Arch. Pract. 200, and cases cited.

however, be pleaded after a demurrer, nor after a verdict,' nor after referees have reported, for a reference is a substitute for a trial by jury.2

The proper course for the plaintiff, if he wish to avail himself of the objection, that the plea was not pleaded in season is, by motion to set it aside, and not by demurrer; and it rests in the discretion of the court, to receive it or not, even after more than one term, between the time that the matter of the plea arose, and the coming in of the plea; and this discretion is governed by extrinsic circumstances, which cannot appear on the face of the plea.*

Great certainty is required in pleas puis darrein continuance. It is not only necessary to aver, that the fact relied on, happened since the last continuance, but the time and place should be specified, and the same rules are to be observed, as in other pleas, as to averments, proferts, &c.5

These pleas must be made and filed, in the manner which has been stated of pleadings generally. They are not required with us, as in the English practice, to be verified by affidavit.

1 Broome v. Beardsley, 3 Caines' Rep. 172. 1 Arch. Pract. 200, and cases cited.

21 Paine & Duer. Pract. 508, and cases cited.

31 Wend. Rep. 228.

4 1 Paine & Duer. Pract. 509, and cases cited. 52 Tidd's Pract. 766, 767.

6 Ibid, 767.

CHAPTER X.

STAYING PROCEEDINGS.

It is common, in England, for the defendant, where he admits the claim of the plaintiff, to the extent set forth in the writ, to move for a stay of proceedings, upon the payment of debt and costs, to save expense. In practice here, a defendant accomplishes the same object, by being defaulted, and moving to have judgment entered, which can be done, at any day of the

term.

By Stat. 1829. ch. 128. s. 3. it is provided, that where a second action is brought by any party, his executor, administrator, or assignee, before the costs upon a nonsuit, in a previous one, brought by the same party, for the same cause of action, have been paid, the court or justice, before whom such second action is pending, shall have power to order further proceedings therein to be stayed, until the costs of such former suit have been paid; and in default of payment, may order such action to be dismissed.

This will be done, on motion by the defendant; but the court will not receive the application, until an execution shall have been issued for such costs, and payment thereof demanded of the party, or of the attorney, prosecuting such second suit.'

1

Vide Melchart et al. v. Halsey et al. 3 Wils. Rep. 149. Doe er. d. Walker v. Stevenson, 3 Bos. & Pul. Rep. 22. Cuyler v. Vanderwerk, 1 Johns. Cas. 247. Perkins v. Hinman, 19 Johns. Rep. 237. Jackson ex. d. Allen et al. v. Carpenter, 3 Cowen. Rep. 22.

In the case of an injunction from the Court of Chancery, upon proceedings at law, though the injunction operates upon the parties only, yet it has been settled as a general rule, that courts of common law will take notice of it, for the purpose of promoting the ends of justice, and of preserving harmony between the two courts.1

So where the court order a new indorser to the writ, in cases where one is required, on account of the insufficiency of the original indorser, the proper course would seem to be, to stay proceedings, until the order is complied with.2

So in an action of trespass, for an assault and battery, where an indictment against the same defendant is pending at the same term, the court will stay proceedings in the former, during the term, in which the latter is triable.

So where an action is brought, pending a reference, which it has been agreed shall operate as a stay of other legal proceedings, or otherwise contrary to good faith, the court will not suffer the plaintiff to proceed in it.s

1

So where an action is brought without authority.*

Hoyt v. Gelston et al. 13 Johns. Rep. 139.

2 Vide 2 Paine & Duer. Pract. 96.

31 Tidd's Pract. 437.

4 Ibid. 1 Paine & Duer. Pract. 195.

CHAPTER XI.

APPEAL.

There is no instance at common law, of an appellate court retrying a cause by jury, except where the former judgment has been reversed or annulled. The practice is almost peculiar to New England, few innovations upon the common law having been made in this respect, in the other states of the Union.'

In 1642, an ordinance was passed, providing for appeals; but the court appealed to, was to try the cause upon the same evidence, which was offered at the former trial. By Stat. 7. Wm. III. c. 8. and by other statutes, passed immediately after, the right to offer new evidence was given, and appeals were put upon the footing, on which they now stand.

SECT. I. IN WHAT CASES AN APPEAL LIES.

An appeal lies from peace, in any civil appeared and plead

From justices of the peace. the judgment of justices of the action, where the defendant has ed. By Stat. 1809. ch. 108. s. 36. the right of appeal, in prosecutions for militia fines, is restricted to cases, where the justice adjudges a forfeiture of more than ten dollars.

1 United States v. Wonson, 1 Gal. Rep. 5. Wetherbee v. Johnson et al. 14 Mass. Rep. 412.

2 Stat. 1783. ch. 42. s. 6.