Broome v. Beardsley

3 Cai. Cas. 172, 1 Cole. & Cai. Cas. 493

• Court: New York Supreme Court
• Decided: August 15, 1805
• Status: Published

Opinion

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 continuance. The last continuance is the return day of the venire facias, where the proceedings are in the ancient method ; the next continuance is the first day in bank thereafter, or the first day of the succeeding iei'rn. Continuances are from term to term. We are all of opinion that the plea was well pleaded and ought to have been received. The verdict must therefore be set aside without costs, and the plea tendered be filed nunc pro tunc, and be deemed parcel of the nisi prius record.