Rayner & Hope v. Dyett

By the Court, Sutherland, J. As a general rule, it is undoubtedly true that a plea puis darrein continuance is a waiver of the pleas before put in; that rule, however, proceeds on the hypothesis that the party assumes a new ground of defence to the action, abandoning the defence before relied on. The defendant here had denied the plaintiffs’ right of recovery; subsequently he obtained a discharge, exempting his body from imprisonment; he plead that fact, so that if judgment did pass against him, his body should not be subject to imprisonment. This was not an admission of the plaintiffs’ right of action, nor did it set up any new matter by way of defence to the action; it only affected the remedy, but not the right of the plaintiffs. The former pleas, therefore, were not waived, and the plaintiffs erred in considering such the effect of the plea puis darrein. The motion is granted, but without costs.