Peale v. Folsome, 2 N.C. 208, 1 Hayw. 208 (1795)

April 1795 · North Carolina Superior Court

2 N.C. 208, 1 Hayw. 208

Peale v. Folsome.

At the pleading term, the Defendant pleaded non est factum, and conditions performed ; and afterwards at another term, the insolvent debtor’s act. Mr. Hay insisted, that, was intended as a plea puis darrein continuance, and that it was a waiver of the preceding pleas. Iv. was insisted on the other side, that it was not a plea puis dar-rein continuance, not having been so pleaded, nor entered on the reeoid as such. Per curiam, were it a plea puis darrein continuance, the plea of non est factum would he thereby waived, and you would have u« need to prove the execution of the. bond ; but mil s« the other side will concede it to be a pica puis darrein continuance, the court cannot take it to be so. I( docs not purport in it self, nor by the entry of it on the record, to-be a plea of some new mat ter. arisen since the last continuance. It might Stave been, and probably was a plea added to the others by motion to the court, or by consent of the opposite party, as an original plea — a juror was withdrawn by consent.

Note. — Vide Greer v. Sheppard, ante 96.