Bequette v. Lasselle

Dewey, J. Debt on a promissory note. Plea, general issue. Verdict and judgment for the plaintiff. On the day previous to calling the cause for trial, the defendant moved the Court for leave to file two special pleas, issue having been made up on nil debet at the preceding term. The motion was accompanied by an affidavit of the defendant’s attorney, stating that the general issue had been put in to save a default, and that he, the attorney, believed the cause could not be fairly tried upon its merits, unless the additional pleas, or one of them, should be allowed. The Court overruled the motion. This is one of the errors urged to reverse the judgment. Amending or adding a plea, after issue, must necessarily depend, in a great measure, upon the discretion of the Court, to whom the application to do so is made; and Courts of late have been very liberal in allowing such changes in the state of the pleadings, when justice would be thereby promoted. Admitting this Court to possess the right of revision over the discretionary power of the Court below — a matter which we do not decide — we see nothing wrong in the rejection of the additional pleas offered by the defendant. He shows no [444] reason why he could not have filed them in the first instance; and the evidence that they contained a meritorious defence is very unsatisfactory. To have allowed them to be filed, after an issue at the proper term of the Court, and after a continuance of the cause, would have been delaying the plaintiff unreasonably. H. Cooper, for the plaintiff. JD. H. Colerick and W. H. Coombs, for the defendant. It appears further, that upon the calling of the cause for trial, the defendant filed a bill of injunction on the chancery side of the Circuit Court. The injunction was refused. This is another alleged error. These chancery proceedings have, strangely enough, found their way into this record. We cannot, in this common law cause, take cognizance of the conduct of the Court of chancery, and pronounce whether it was right or wrong in refusing the injunction. That decision belongs to another cause, and is as foreign from this, as if it had been made by a Court having chancery powers only. Our Circuit Courts, it is true, are invested with both common law and equity powers, but they act as distinct and independent tribunals, when exercising the different jurisdictions. There is another objection urged against the judgment of the Circuit Court, which has as little weight as the two former. The defendant moved in arrest of judgment for a supposed defect in the declaration. The promissory note set out in the declaration is stated to bear date “ on the twenty-third day of April, one thousand eighteen hundred and thirty-seven, (written April 23, 1837.)” Plere is undoubtedly a blunder which has caused some redundant words, but there is no pretence for. supposing it is a good reason in arrest of judgment. Per Curiam. The judgment is affirmed, with 5 per cent. damages and costs.