Reimer v. Doerge , 61 How. Pr. 142 ( 1881 )

McAdam, J.

There are authorities holding that a defendant may set up in his answer any matter arising before it is put in, whether it occurred after suit brought or not ( Willis agt. Clipp, 9 How. Pr., 568; Carpenter agt. Bell, 19 Abb. Pr., 263; Bennett agt. Annesly, 27 How. Pr., 184; Beebe agt. Dowd, 22 Barb., 255). That although not a plea in bar, it is an answer to the further1 maintenance of the suit, and, if true and sufficient, is equally effective in preventing a recovery (Carpenter agt. Bell, supra). The plaintiff cannot now object to the regularity of the plea, after having accepted it by going to trial upon the issue presented by it. If it was irregular for any reason, the remedy against it was one of practice to be determined "upon motion before the trial. The plaintiff elected to try the issue, and upon the trial the plea of payment as pleaded was fully proved. It follows, therefore, that there must he judgment for the defendants, with costs.