Lincoln v. Thrall

The opinion of the court was delivered by Bennett, J. This case stood upon the general issue, and at the September Term, 1851, a special plea of puis damen continuance was filed, which upon demurrer was held bad; and the question now is, whether the plaintiff thereupon became entitled to a final judgment against the defendant, notwithstanding the plea of the general issue. From the record of the county court, which is a part of the bill of exceptions, it appears there had been one jury trial, and a verdict for the defendant, before this plea was filed; and now the plaintiff claims he should have judgment for his demand. "We think a plea of this description is in legal effect a waiver of all previous pleas, the cause of action on the record stands admitted to the same extent, as it would have been, if no defence had been urged, other than that set up in the plea of puis darrein continuance ; and the effect of such a plea is to strike from the record, by operation of law, all previous pleas, and everything stands confessed, except the special matter contested by the plea. This is fully established by the cases cited in argument. The principle is, that the defendant has only a qualified right to avail himself of matter to be contested by means of a plea, puis darrein continuance ; and to avail himself of such matter, he is required to yield up the cause, in all other respects. It is now said in argument that this plea, though inform a plea, puis darrein continuance, still in legal effect it is but a plea in bar simply of a further maintenance of the action, and that the court should so treat it; but we think not. The case at the previous [308] term before this plea was filed had been at issue, and tried and a verdict for the defendant. The fact, that the defendant, when he filed this special plea, filed anew the general issue should not effect the rights of the parties. It was none the less a waiver of all other defences. The plea in this case goes to the plaintiff’s right of action; and does not simply affect the remedy. If it simply affected the remedy, the case might merit a different consideration. The result is, the judgment of the county court is reversed, and the rule for setting aside the non-suit is made absolute, and the case remanded to the county court.