A plea puis darrein continuance, is a waiver of all former pleas and an admission of the declaration.
This was an action of trespass, for an assault and battery on the person of the Plaintiff. There was a plea *112 ¿arrein continuance — that he had recovered in an ac~against another Defendant, who was a party to the same trespass, and had judgment against him : and neither Plaintiff nor Defendant had witnesses now ready to prove the trespass, or that it was the same trespass for which damages had before been recovered.
Haywood for the Plaintiff
The plea puis darrein continuance, is a waiver of all former pleas, and amounts to an admission of the facts stated in the declaration : and he cited 3 Bl. Com. 317. who cites Cro. El. 49. and he also cited a case lately decided at Salisbury, between the administrators of Hillary Butts, Plaintiffs, and
Defendant, where it was pleaded since the last continuance, that the Defendant has obtained a release from the administratrix, who was a married woman : whereupon if was insisted by the Plaintiff’s Counsel, and so ruled by the Court, that this plea is a waiver of ail former ones, and an admission of the truth of the declaration.
Davie e contra
The act of 1777, ch. Z sec 34. allows the Defendant to plead as many several matters as may be necessary for Ids defence, so that he be not admitted to plead and demur to the whole 5 when therefore any pleas necessary for his defence are put in, they are each to be presumed to be material, and not one a waiver of the other which happens to be prior to it.
Per Curiam,
Judge Ashe and Judge Macay
-A plea puis darrien continuance, is a waiver of ail former pleas, and art admission of the declaration ; and the Defendant not being ready to prove his plea, Plaintiff had a verdict and judgment for one penny.
Note. — Vide McDaniel v. Tate, in a note to Smith v. Powel, port 453. 1 Chitty’s Plead. 636.