
    Schenck vs. Lincoln.
    Where, after a judgment in a justice’s court, and previous to an appeal, the suit between the parties is settled, and the defendant notwithstanding prosecutes an appeal, the plaintiff can not allege the accord and satisfaction by way of plea puis darrein continuance; Ids proper course is to apply to the common pleas by motion to dismiss the appeal.
    Error from Montgomery common pleas. Schenck sued Lincoln in a justice’s court and obtained judgment for $50 besides costs. Lincoln appealed to the Montgomery common pleas. At the next term of the common pleas after the filling of the justice’s return, Schenck, the plaintiff below, filed and served a pleading what in the record is called a plea puis darrein continuance, stating in substance that since the rendition of the judgment before the justice and before the bringing of the appeal, to wit, on, &c. at, &c. the parties fully and finally settled the suit pending between them, and the subject matter thereof, for a good and valuable consideration passing between them, concluded the same by putting himself upon the country. Lincoln objected to the allowance of such plea, and insisted that no other issue than that joined before the justice could be tried in the common pleas. The objection was overruled, and the parties proceeded to the trial of the cause, and evidence was given by both parties in respect to the settlement [507] alleged in the pleading thus interposed by Schenck. HThe jury, not being able to agree on a verdict, were discharged by the court. At a subsequent term the cause again was brought to trial, when the plaintiff, to support the allegation, of a settlement, offered in evidence certain affidavits, which it was conceded by the defendant should have the same effect as the oral evidence of the deponents to the affidavits, if the evidence was adjudged by the court to be admissible. Whereupon the defendant renewed his objection, that no other issue than that joined before the justice could be tried in the common pleas, and that therefore the evidence offered was inadmissible. The court now sustained the objection, and the plaintiff producing no other proof, was nonsuited. The plaintiff having excepted to the decision of the court, sued out a writ of error.
    
      S. Stevens, for’plaintiff in error.
    
      W. Packard, for defendant in error.
   By the Court,

Cowen, J.

A plea in nature of a plea puis darrein continuance is receivable by the common pleas, from the defendant below, of matter in his defence arising at any time subsequent to the rendition of the judgment below. The People, ex rel. Thayer, v. The Ontario C. P., (1 Wendell, 80). This, it is true, was under the act of 1824 (p. 296, § 38); but that statute, like the present (2 R. S. 262, § 214), forbade any new pleading in the common pleas. It is evident the statute intended new pleading in respect to the matter before the justice; otherwise very great injury might ensue. The proceeding by appeal is in nature of a new trial, at which the defendant may always plead matter arising since the last continuance. An appeal is “in fact granting a new trial, upon the same issue, in a higher court” (Platt, J., in Rawson v. Adams 17 Johns R. 131). But I have yet to learn, that on a new trial, or any other, the plaintiff may interpose a plea in bar of the defence, for such would be the effect of allowing what the appellee, in this instance, chose to call his plea.. He is a mere plaintiff upon [508] a new trial, who says the cause was, since the former trial, settled by the parties. That being so; I suppose all right to appeal was forfeited, and any attempt to move in the matter, I take it, should be corrected on summary application to the common pleas, say on motion to dismiss the appeal according to 2 R. S. 261, § 202, et seq. Be that as it may, the appellee has here clearly mistaken his remedy.

Judgment affirmed.  