Rayner & Hope v. Dyett — 2 Wend. 300

Majority

p. 300

Rayner and Hope vs. Dyett.

Headnote

A plea puis iX0.YY£fl1% CullVlnuance of a disthcfact 'SjoIonmentimp for debt in certain waivf of a Fore “puf in6' and the plain-confess the judgment fut must proceed, and try the former issues,

AFTER this cause was at issue, the defendant obtained a discharge under the act to abolish imprisonment for debt in certain cases, which he plead puis darrein continuance. The Pontiffs made an entry on the roll, confessing the plea and praying judgment of their damages to be levied of the goods, &c. of the defendant, and not upon his person, and served a C0PJ °f the same upon the defendant, together with a notice 0f assessment of damages by the clerk, considering the plea puis darrein as a waiver of the pleas before put in; and they Procee^e^ an(t entered a rule for interlocutory judgment, &c, to set aside which this motion was made,

p. 301

Van Benthuysen fy Oakley, for defendant.

Emmet Grim, for plaintiffs.

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.