Culver v. Barney
New York Supreme Court
Error to the Washington common pleas. A suit was commenced before a justice in the name of Barney as plaintiff, against Culver. The plaintiff declared on a joint and several promissory note for 22 dollars and 50 cents, given to him by Culver and one C. Cook. The defendant pleaded the general issue and various other pleas in bar. The cause was adjourned for trial, and on the day appointed the defendant put in a plea puis darrien that one Andrew II.
Read the full summary
Error to the Washington common pleas. A suit was commenced before a justice in the name of Barney as plaintiff, against Culver. The plaintiff declared on a joint and several promissory note for 22 dollars and 50 cents, given to him by Culver and one C. Cook. The defendant pleaded the general issue and various other pleas in bar. The cause was adjourned for trial, and on the day appointed the defendant put in a plea puis darrien that one Andrew II. Moore is the real plaintiff in this suit; that since the adjournment of the cause, an action commenced by Culver against Moore had been brought to…
1Opinion of the Court
By the Court,
Sutherland, J.
The justice properly held that the plea puis darriencontinuance was a waiver of the former pleas. It was a plea in bar of the further prosecution of the suit, going to the foundation of the action. But even in a plea in abatement pleaded puis darrien continuance, the judgment, either upon demurrer or verdict, is -final, quod recuperet, and not a respondeos ouster. 1 L. Raym. 693. 1 Salk. 178. 10 Wend. 675. Grah. Pr. 258. This rule, however, does not apply where the matter of the plea affects the plaintiff’s remedy only, and not his right of action. A discharge under…
2Cases cited2 opinions
- Kimball & Kiniston v. HuntingtonNew York Supreme Court · 1833
- Rayner & Hope v. DyettNew York Supreme Court · 1829
3Cited by5 opinions
- Adams v. FilerWisconsin Supreme Court · 1859
- Steele v. SellmanCourt of Appeals of Maryland · 1894
- Pool v. HillMississippi Supreme Court · 1870
- Rust v. Burke, Turner & Co.Texas Supreme Court · 1882
- Waterbury v. McMillanMississippi Supreme Court · 1872