Wollen v Smith
| Jurisdiction | England & Wales |
| Judgment Date | 12 January 1839 |
| Date | 12 January 1839 |
| Court | Court of the Queen's Bench |
English Reports Citation: 112 E.R. 1303
IN THE COURT OF QUEEN'S BENCH
S. C. 1 P. & D. 374; 2 W. W. & H. 79; 8 L. J. Q. B. 122.
wollen against smith. Saturday, January 12th, 1839. Where a defendant pleads puis darrein continuance, the plaintiff may always discontinue without payment of costs. Therefore, where defendant (after plea) pleaded his bankruptcy and certificate puis darrein continuance, and plaintiff thereupon took out a summons for leave to discontinue without costs, it was held that he was entitled so to do, and that defendant could not be allowed to sign judgment of non pros for want of a replication. Stat. 6 G. 4, c. 16, s. 59, is not applicable where a certificate in bankruptcy is pleaded puis darrein continuance. [S. C. 1 P. & D. 374 ; 2 W. W. & H. 79; 8 L. J. Q. B. 122.] E. James had obtained a rule in Michaelmas term, 1837, calling upon the plaintiff to shew cause why the summons taken out in this cause on 1st April, 1838, should not be discharged, and why the defendant should not be at liberty forthwith to sign judgment for want of a replication. In the last term (8th November 1838,(a)) Humfrey shewed cause, and E. Jamas was heard in support of the rule. The circumstances of the case, and the arguments and authorities adduced, will fully appear from the judgment. Cur. adv. vult. Lord Den man C.J., now delivered the judgment of the Court. This was an action by the indorsee against the acceptor of a bill of exchange. The defendant became [506] bankrupt; and a fiat issued against him on the 6th July, 1836. He was arrested in this action in the month of November in the same year. The plaintiff declared in February 1837; and the defendant pleaded, in the same month, that he did not accept. After pleading, he obtained his certificate; and, on the 27th March, pleaded it puis darrein continuance. He then ruled the plaintiff to reply, who took out a summons for leave to discontinue without costs. The learned Judge, before whom it was heard, referred the parties to the Court ; and, accordingly, the defendant obtained a rule nisi to discharge the summons, and to be at liberty to sign judgment of non pros for want of a replication : which was argued in last Michaelmas term. On the part of the defendant, the case was said to be similar to those of Thompson v. Percival (5 B. & Ad. 925, 935), and Augarde v. Thompson (2 M. & W. 617), in which it was held that a plaintiff cannot avail himself of sect. 59 of stat. 6 G. 4, c. 16, so...
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