Wagner v Imbrie
| Jurisdiction | England & Wales |
| Judgment Date | 03 May 1851 |
| Date | 03 May 1851 |
| Court | Exchequer |
English Reports Citation: 155 E.R. 590
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S C 2 L M P 333, 20 L J Ex 235, 15 Jur 405 See further, p 882, post
wagner v imbhie May 3, 1851 -A defendant may plead puis datiein continuance where an issue remains to be tried, notwithstanding tbeie are other issues upon which the plaintiff has already obtained judgment [S C 2L M &P 33.3, 20 L J Ex 235, 15 Jur 405 See further, p 882, post] This was an action upon a lecogmsance of bail The defendant pleaded, first, mil titl record , secondly, that no writ of capias ad satisfaciendum issued against the principal , thirdly, that the principal paid the debt and damages The plaintiff replied to the fitfst plea, tiel record , to the second, setting out the capias , and to the thud, denying payment Judgment having been obtained on the two hist pleas, the issue joined on the tljird came on foi trial, befote Martin, B , at the Middlesex Sittings in the present Term, when the defendant tendered a plea puis darrein continuance of the plaintiff's batik-iilptcy, which was received by the learned Judge , and the juiy wote dischaiged fflom trying the issue L Hornby now moved to set aside the plea puis dariein continuance, and for 10a-\e to sign judgment A plea puis, dan em continuance is a waiver of all previous pleas, therefoie, in the present case, it cannot be pleaded , for the plamtift has obtained judgment on the two first pleas, and that which is mattei of record cannot be withdrawn There is no authority precisely in point, but in titnnei' v (hbboiLs (Moore, 871), it was resolved, that a plea pins darrein continu [381]-ance cQnld not be pleaded after joinder in demuriei, though it was otherwise aftei issue in f&ct joined (#) [Parke, B What objection is theie on principle1* I do not see why tjie plea puis darrein continuance may not operate as a waiver of all pleas which remain to be tried ] In 8/uirpe v Withcan (M'Cl & Y 350), issue having been joined oji a plea of nul tiel record, and on the clay appointed for the production of the record the defendant having moved foi leave to plead puis darrein continuance his baukr uptcy (a) See, however, the report of this case in Hobait, 81, from which it would aeem fchat the plea was allowed...
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