Morris v. Cook
New York Supreme Court
Motion to set aside a default for not rejoining, and the proceedings on the part of the plaintiff subsequent to the default. The action was ejectment for a dwelling house orchard and garden. The defendant pleaded the general issue, and afterwards, as to 3-10ths of one acre of the premises in question, pleaded a title acquired by him, puis darrien continuance.
Read the full summary
Motion to set aside a default for not rejoining, and the proceedings on the part of the plaintiff subsequent to the default. The action was ejectment for a dwelling house orchard and garden. The defendant pleaded the general issue, and afterwards, as to 3-10ths of one acre of the premises in question, pleaded a title acquired by him, puis darrien continuance. To this the plaintiff replied specially, and demanded a rejoinder within 20 days, which not being delivered, the defendant’s default was entered and judgment taken for the whole premises.
1Opinion of the Court
By ifw Court,
Cowen, J.
It is supposed by the plaintiff’s counsel that a plea puis, &c. is a waiver of all previous pleas, whether it be interposed to the whole or only part of the plaintiff’s action. The rule is perhaps universal where the plea goes to the whole subject of the declaration. But where it goes to one of several counts, or to any particular part of an entire claim, I can see no reason for making it a waiver beyond what it professes to answer. In Rayner v. Dyett, 2 Wend. 300, a plea puis, of a discharge of the body from imprisonment, was held to be no waiver of the previous general…
2Cases cited1 opinion
- Rayner & Hope v. DyettNew York Supreme Court · 1829
3Cited by4 opinions
- Waterbury v. McMillanMississippi Supreme Court · 1872
- Bennet v. GilbertAppellate Court of Illinois · 1901
- Davis v. BurgessSupreme Court of Rhode Island · 1892
- Trustees of R. E. Bank v. BozemanSupreme Court of Arkansas · 1854