A plea puis darrien continuance should be pleaded on the first day of the term next after the new matter of defence arose; but if there is a circuit in the mean time, a trial can only be prevented by putting in the plea at the circuit. When the plea comes in due time, it is matter of right; and neither the court in bank, nor the judge at the circuit has any discretion to reject it. But as such pleas are often resorted to for the mere purpose of delay, the defendant is held to strict rules. If he do not plead in time, it is no longer *272a matter of right, and the plaintiff may refuse to receive the plea; or, if pleaded at the circuit, the judge may in his discretion refuse to receive it. and. suffer the trial to proceed. Although there are some dicta in the books which look the other way, we think this the only safe and proper rule.
There can be no pretence that this plea was in due time. If we say nothing of the period which elapsed between the granting of the discharge in July, 1843, and the decision of the court of errors in December last, the plea should, beyond all question, have been put in at the last January term; and yet both that, and the May term passed without any offer to plead. The plaintiff has clearly been regular; and the only remaining question is, whether the defendant should be relieved on terms.
In the consideration of this question it is proper to inquire how much delay there has been. If the defendant intended to rely on the discharge, he was clearly in default from December to the 19th of June last. But I think the discharge should have been pleaded in 1843. It is said that the defendant was precluded by the stipulation from pleading until after the decision of the court of errors was made in the Halsey case. But that is an error. The object, of the stipulation was, to make the other causes abide the event of the plaintiff’s motion for a new trial in the Halsey cause; and if a new trial should be denied by this court, then to abide the event in the Halsey case upon a writ of error. The parties could not have intended to preclude the defendant from pleading any new matter of defence which might arise in the mean time. True, the stipulation says, that pending the writ of error the causes shall stand as they now do? But that meant no more, than that the defendant should not proceed to judgment prior to a decision by the court of errors. The literal reading which is now urged by the defendant, would be fatal to his application -when applied to another part of the Stipulation. The agreement was, that if the judgment in the Halsey suit should be reversed, “ then the said other causes shall stand for trial as they now do? If the words “ as they now do” in the one clause would preclude the defendant from pleading pending the writ of error, then the same words in the other *273clause will preclude him from pleading now; and this with the other causes must “ stand for trial as they now do and not upon any different issue. But no such thing was intended. The defendant might have pleaded his discharge immediately after it was granted, and consequently he has been in default on that subject for nearly three years.
The only excuse which has been offered for this great delay is, that, the defendant did not know until June last that it was necessary to plead the discharge. But I think this was not the true reason for omitting to plead ; and this leads me to notice another feature in the case. By omitting to answer the plaintiff’s note of September, 1843, and afterwards opposing the plaintiff’s motion for leave to discontinue, without costs, the defendant virtually decided not to plead the discharge; but to take his chance of a favorable result in the Halsey cause, which would entitle him to a bill of costs amounting to three or four hundred dollars, as was stated in the papers in opposition to the plaintiff’s motion. The plaintiff invited a termination of the suit on the ground of the defendant’s bankruptcy, which woul 1 have given costs to neither party. But as the defendant already had the judgment of this court in his favor, and confidently expected to succeed in the court of errors, he refused, in effect, to set up his bankruptcy as a ground of defence. He elected to take the peril of an adverse decision in the Halsey suit, in preference to the loss of a large bill of costs by setting up the discharge. After making that election, the defendant ought to abide by it.
. The delay alone, as it is without a sufficient excuse, -would make it necessary to deny the present motion, so far as relates to the pleading of the discharge. (Desobry v. Morange, 18 John. 336; Valkenburgh v. Dederick, 1 John. Cas. 133.) But the case is rendered much stronger against the defendant by the fact, that when invited to set up his discharge as an answer to the suit in 1843, he declined the offer in the expectation of gaining an advantage by adopting that course.
Although the motion for leave to plead the discharge must be denied, yet as the defendant thought the plaintiff was irregular *274in proceeding at the late circuit, and for that reason omitted to set- up what he deems a good defence on the merits, independent of the discharge, we think the verdict should be set aside on payment of costs. But in that case, the plaintiff may discontinue without costs, if he shall so elect.
Ordered accordingly.