Harding v. Minear

Department No. 1, McKee, J.: Property of the defendant was taken by a writ of attachment issued in this action at the commencement thereof, and upon the defendant giving an undertaking with sureties, as required by § 555 of the Code of Civil Procedure, the attachment was discharged and the property released.

More than four months after the commencement of the action, the defendant instituted proceedings in bankruptcy; and when he had received his certificate of discharge, he applied to the Court below in this action for leave to file a supplemental answer, setting up his discharge in bankruptcy as a bar to the further prosecution of the action. The Court denied the motion, tried the case on the issue joined by the complaint and answer on file, and gave judgment against the defendant; from which the defendant appeals, and assigns as error the action of the Court in denying his motion to file the supplemental answer.

Section 464 of the Code of Civil Procedure declares that the plaintiff and defendant respectively may be allowed, on motion, to make a supplemental complaint or answer, alleging facts ma[505]terial to the case occurring after the former complaint or answer. Construing the section of the New York Code applicable to this subject, the courts of that State have decided that the section was intended as a substitute for the former practice in actions at law of a plea puis darrein continuance. In Hoyt v. Sheldon (4 Abbott, 54), it was said that a supplemental answer shall be given in actions at law, in all cases in which a plea puis darrein continuance could have been put- in as a matter of right. (Garner v. Hanna, 6 Duer; Slauson v. Englehart, 34 Barb.; Bates v. Fellows, 4 Bosw.)

It was the practice in common-law courts, after issue joined in an action, to give a day for the parties to appear in Court, by an entry upon the record. This was called the continuance, because thereby the proceedings were continued without interruption from one adjournment to another. (Blackst. Com. vol. 3, p. 316.) In progress of law, the entry on the record became mere matter of form, and might be made at any time to make the record complete ; and subsequently, by an act of Parliament, it became unnecessary to make entry of the continuances at all. But if a new matter of defense arose in a case after issue joined, and between ■ the last continuance and the day set for the reappearance of the parties, the defendant was entitled, on the day for reappearance, to plead it as a matter which had happened after the last continuance, or—as the practice was modified by subsequent legislation—after the last pleading. The effect of such a plea, when pleaded, ivas not to impugn the right of action altogether, but only the right of maintaining it: i. e. since the period when matter of defense arose. The plea itself was considered as a waiver of all previous pleas, and the cause of action was admitted to the same extent as if no other defense had been made but that contained in such a plea. (Wallace v. McConnel, 13 Peters, 136; Yeaton v. Lynn, 5 Id. 223; Spofford v. Woodruff, 2 McLean, 191.)