2 Paige Ch. 413 | New York Court of Chancery | 1831
decided that as the proceedings on the part of the complainant had all been regular, and there had been no missaprehension or mistake on the part of the defendant’s counsel, it was not in the power of the court to extend the time for appealing. Such a proceeding he said would be a virtual repeal of the statute ; that this case differed from that of Smith v. Smith, ( 1 Paige’s R. 391,) where the time for appealing was prescribed by a rule of the court. But he gave the defendant time to put in an answer, provided she did not set up the same matter, which had been decided on the plea to be insufficient, as a bar to the divorce.
The counsel for the defendant asked the chancellor to reconsider the latter part of the above decision. He insisted that the defendant had the right, without any permission from the court, to set up the same matter in the answer in bar of the suit, which had been previously overruled in the form of a plea. To this point he cited Mitf. PI. 244; 3 P. Wms. 95 ; 2 Ves. sen. 491; 1 Atlc. 450; 1 Cox’s Ca. 228.
After a full examination of all the authorities on this question, I find myself strengthened in the opinion before expressed, that the defendant cannot set up in the answer, as a bar to the suit, the same matter which has been overruled, on the merits, in the shape of a plea. Most of the cases cited by the defendant’s counsel were examined by Sutherland, J. and Golden, senator, in the case of Murry v. Coster, (4 Cowen’s R. 617,) and those judges evidently came to the conclusion that the expression in Lord Redesdale’s Treatise was too general; and that, taken in the broad sense contended for by the counsel of the defendant, it was not sustained by the authorities there referred to. Those cases only establish the principle that where a plea is merely informal, or where it may be a good answer as to some part of the bill only, the court permits it either to stand for an answer
The practice of the court of chancery in this respect is perfectly analogous to that of courts of law. There, if the defendant demurs to the declaration, and the demurrer is overruled, the party cannot be permitted to make the same objection by motion in arrest of judgment, unless that right is reserved; but if the right is reserved, he may move in arrest, although the same question might have been determined on the demurrer. (Pittstown v. Plattsburgh, 15 John. R. 441. 18 id. 418.) So, if the court decides against the validity of a plea in bar, on the merits, the defendant will not be permitted to give the same facts in evidence on the trial, under his notice with the general issue.
The order giving her permission to answer must therefore be entered according to the former decision.