Sanderlin v. Dandridge ( 1842 )

Reese, J.

delivered the opinion of the court.

In this case, at the appearance term three pleas were filed, on one of which issue was taken, and to the others a special demurrer was filed. At the next term, since the last continuance, a plea was filed in lieu of part of the plaintiff’s claim or demand, and the cause was continued by affidavit of the defendant; and at the trial term a jury were sworn to try the issue joined on the plea since the last continuance, and to enquire of damages as to so much of the plaintiff’s declaration as was not answered by that plea. The jury found a verdict as to the matter of that plea in favor of defendant, and that the defendant liad not performed the balance of his covenant; and assessed the plaintiff’s damages. And the court gave judgment thereon without noticing the demurrer to the plea first filed, and the defendant has prosecuted his appeal to this court.

And here it is conceded by the counsel of the defendant as being a question long and well settled, that a plea, since the last continuance, is in general, a waiver, and in legal effect a withdrawal of former defences. But it is insisted that this result is not produced by a plea since the last continuance, which is not in bar of the plaintiff’s entire demand. To maintain this distinction no authority has been produced. And it occurs to us that every ground of principle or convenience, which may be taken as the cause or origin of the general rule of waiver, would apply to a plea since the last continuance, answering to less than the whole demand. A waiver pro tanto cannot in the nature of things exist, for its practical application would in many instances that can be imagined, produce the utmost confusion. It would, therefore, like a general plea, produce a waiver of all prior defences, or produce no effect whatever. In the absence of all authority to maintain the distinction referred to, we incline to hold, on reason and principle, to the far more correct view, that all prior defences are waived by such partial plea, since the last continuance, and we therefore affirm the judgment.