Wood v. White

1 Ant. N.P. Cas. 306

Opinion

Jones, C. J.

The matter pleaded “puis darrien continuance” was not in bar of the action; if it had been, the plea would have been clearly a waiver of all.preceding pleas: it was matter in abatement only, and, therefore, did not waive the former pleas. Raynor et al. v. Dyett, 2 Wend. 300.

(1)

Meredith and Ha 11, for plaintiff.

Wallis and Anthon, for defendants.

This rule seems well sustained, from the earliest times. Lord Chief Baron Gilbert, in bis excellent “ History and Practice of Civil Actions,” thus states it upon authorities: 11 The pleas (puis, &c.,) are two-fold, viz. in abatement, and in bar; if anything happens, pending the writ to abate it, this may be pleaded puis darrien continuance, though there is a plea in bar, for this can only wáive all pleas in abatement that were in being at the time of bar pleaded, but not subsequent matter. But though it be pleaded in abatement, yet, after a bar is pleaded, it is peremptory, as well on demurrer as on trial, because, after bar pleaded, he has answered in chiefj and, therefore, can never have judgment to answer over. Gilbert’s Practice, 105; Buller’s N. P.310; 1 Chitty on Pleading, 637, When it is pleaded in abatement, and found against the defendant, the issues in bar, however, must still be tried.

In relation to matters of fact, occurring after the defendant has answered, and which, under the old practice, were brought before the court by plea puis, the Code of Procedure is silent. It is presumed the practice of the court of chancery must be here resorted to. Such matters must be, therefore, introduced by supplemental answer. 1 Barb. C. P. 166. It seems reasonable that the logic of the old cases must still, however, prevail, where-ever.the new matter is an abandonment of the first defence.