Alexander v. Fink

12 Johns. 218 | N.Y. Sup. Ct. | 1815

Spencer, J.,

delivered the opinion of the court. The plea, puis darrein continuance of the marriage of the plaintiff cannot avail here. It is well settled, that after a verdict, matter which abates the writ shall not be pleaded in abatement, for the defendant has no day in court. The marriage of a woman plaintiff after verdict, and before the day in court, cannot be pleaded. (1 Com. Dig. 102. Abatement I. 34. Cro. Car. 232.)

A reference, in matters involving long accounts, is a legislative substitute for a trial by jury; and this we are to intend ií such a case. Consequently, the report of the referees is to be regarded in the same light as a verdict of a jury; and the marriage of the plaintiff having taken place after making the report, the plea is bad..

Upon the other point in the case, there is no pretence that Alexander is liable for the wheat sent to the Boydsi and sold by them to Townsend,^(a)

Motion to set aside report denied.

(a) See Herring and Walker v. Marvin, (5 Johns. Rep. 393.)