Jewett v. Jewett , 58 Me. 234 ( 1870 )

Tapley, J.

To the plaintiff’s writ in this case, the defendant pleads puis darrein continuance, a release and discharge of the plaintiff’s claim. To this plea the plaintiff has replied, and to the replication of the plaintiff the defendant demurs.

This raises not only the question of the sufficiency of the replication, but also that of the plea; “ for it is an established rule that upon the argument of a demurrer, the court will, notwithstanding the defect of the pleading demurred to, give judgment against the party whose pleading was first defective in substance.” 1 Chit. PI. 668 and notes.

" Great certainty is required in pleas of this description; and it is not sufficient to say, generally, that after the last continuance’ such a thing happened, but the day of the continuance must be alleged.” 1 Chit. Pl. 660; 3 Chit. Pl. 1238 to 1246; Steph. Pl. 80.

“ A plea of this kind must be certain, for it is not sufficient to say that since the last continuance such a thing happened, but the day of the continuance must be shown, and also the time and place must be alleged when the matter of defense arose.” 3 Bouvier’s Inst., § 3022.

A plea puis darrein continuance requires extreme certainty, and the day of continuance should be specified. Vicary v. Moore, 2 Watts, 451; Dunn v. Hill, 11 Mees. & Wels. 470.

Such a plea must show facts happening after the last continuance, and the time and place when the defense arose. Ross v. Nesbit, 2 Gil. 252; Cummings v. Smith, 50 Maine, 568.

The plea of the defendant makes no averment of the day of continuance, and is fatally defective.

A plea of puis darrein continuance is a waiver of all former pleas, and if, on general deniurrer, the decision be against the defendant, the judgment must be peremptory in favor of the plaintiff. McKeen v. Parker, 51 Maine, 389.

Judgment peremptory against the defendant.

Appleton, C. J.; Cutting, Kent, Dickerson, and Barrows, JJ., concurred.