Morris v. Cook

19 Wend. 699 | N.Y. Sup. Ct. | 1839

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 pleas in bar. Why was this so ? Plainly because the plea ■ puis was partial. It affected the remedy merely. It acted as a waiver no farther than it was intended as an answer. There it was received to qualify the plaintiff’s claim. The former pleas being allowed to stand in full force, a repetition as to part, would have been worse than useless, because lead-*n£ to unnecessary prolixity. The plea in question may be bad for not answering the whole declaration, or some distinct count; but the remedy for that was to demur. The motion is granted with costs.