4 Wis. 159 | Wis. | 1856
By the Court,
There can be no doubt that the nonsuit in this case was wrongly ordered. The plaintiff below filed his declaration, counting upon the cheek which was drawn by the defendants. To this declaration the defendants pleaded the general issue, and afterwards by leave of the court filed a plea, puis darrien continuance, setting up the proceedings in the District Court of the United States, in bar of the plaintiff’s action. We have, no doubt, that the pleajpwis darrien continuance was a waiver of the plea of -the general issue, which
The case cited by the counsel for the defendants in error, in support of the contrary doctrine (2 Wend. R. 800), is not inconsistent with the authorities above cited.
In that case the defendant, after he had pleaded in bar of the action, put in a plea puis darrien continuance, setting up certain proceedings under an act of the legislature by which, as was assumed, he could not be imprisoned by virtue of the judgment which the plaintiff might recover.
The court held that as this plea went only to the remedy, and could not affect the plaintiff’s action in any way, it was no waiver of the plea in bar of which had been previously pleaded. In this case, both pleas were pleas in bar of the plaintiff’s action ; and we must apply the general rule to them, and hold that the plea (puis darrien continuance) was a waiver of the plea of the general issue.
This being the position of the parties in respect to their pleadings at the trial,» it is apparent that the plaintiff made out his case prima facie when he gave in evidence to the jury the check described in the declaration. The drawing of the check, in favor of Maybaum, by the defendant, the transfer of it-to the plaintiff, the presentation of it to the drawees, their refusal to pay it, and notice of its dishonor to the defendant, were not traversed by the plea, and of course, by the rules of pleading, were admitted. The plaintiff had therefore established his right to recover, unless the defendants could make out a defence. The court should therefore have refused the nonsuit, and put the defendants to the proof of the facts set up in their plea.'
Judgment reversed.
