Stevens v. Thompson

Parker, C. J. The plea should have been received without terms. A pleapwis darrein continuance is a matter of right, and the court cannot refuse to receive it. 2 Wils. 138, Paris vs. Salkeld; 3 Caines’ R. 172, Broome vs. Beardsley; Howe’s Practice 431. Of course the court cannot require the costs to be paid, as terms of leave to plead it. If the defendant neglect to plead the matter which has arisen since the last continuance, at the next term, he cannot claim a right to plead it at a subsequent term. But the court, in its discretion, may grant leave to plead it nunc pro tunc, and when it thus exercises its discretion may impose the payment of costs. 1 Chitty’s Pl. 457, [637] ; 10 Johns. 161, Morgan vs. Dyer. If the plaintiff is entitled to costs up to the time of the filing of the plea, he can have a judgment for those costs upon the termination of the action, if the defendant should succeed in sustaining his defence to the farther prosecution of it. If the plaintiff prevails, he will take costs from the commencement of the action to the term of judgment, and no special judgment will be necessary. It is perhaps not to be regarded as quite settled that the plaintiff is, in general, entitled to costs up to the time of filing a plea puis darrien continuance, where the defendant prevails upon it. The dicta to that effect in Kimball vs. Wilson, 3 N. H. Rep. 102, and Bailey vs. Marsh, 3 N. H. Rep. 276, seem to be supported by a statement of the counsel in Harris vs. James, 9 East 89, so far as pleas of certificates of discharges in bankruptcy are concerned; but it may deserve examination whether that practice is not confined to pleas of that character. It was held, in Kimball vs. Wilson, that the plaintiff was not so entitled, W'here the matter of the plea was a release by one of the plaintiffs. Hxcepiion allowed.