Tuffs v. Gibbons

19 Wend. 639

Opinion

By the Court,

Bronson, J.

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.