Culver v. Barney

By the Court, Sutherland, J. The justice properly held that the plea puis darriencontinuance was a waiver of the former pleas. It was a plea in bar of the further prosecution of the suit, going to the foundation of the action. But even in a plea in abatement pleaded puis darrien continuance, the judgment, either upon demurrer or verdict, is -final, quod recuperet, and not a respondeos ouster. 1 L. Raym. 693. 1 Salk. 178. 10 Wend. 675. Grah. Pr. 258. This rule, however, does not apply where the matter of the plea affects the plaintiff’s remedy only, and not his right of action. A discharge under the act abolishing imprisonment for debt in certain cases, is not a waiver of a plea in bar previously pleaded. It seeks [163] merely to modify the remedy, not to defeat the action. Rayner v. Dyett, 2 Wendell, 300. The facts set forth in the plea were no defence to this action. Moore, who is the real plaintiff in this suit, was not bound to set off this note in the suit brought by Culver against him. It was not the note of Culver only, but of Culver and Cook. Although it was joint and several, and a separate action might have been maintained upon it against either of the makers, yet the holder was not bound to offset it against either. By doing so, and taking judgment against the plaintiff for the balance which would have been found in his favor, he would probably have lost his remedy against the other maker. He could not afterwards have sued him upon the note. The demands which the defendant must set off are demands against the plaintiff in the action, and not against the plaintiff and some other person either jointly or severally . 2 R. S. 236, § 50, sub. 7. The authority of the attorney to appear for the plaintiff was sufficiently proved. The power of attorney was given by Barney, the plaintiff on the record. It was perhaps thought necessary that it should be in his name, although the demand belonged to and was prosecuted for the benefit of Moore. There was no pretence that the suit was prosecuted against the will of Moore, or for the benefit of any other person. The power was sufficient. The court of common pleas properly affirmed the justice’s judgment. Judgment affirmed.