
    John Simonton, v. A. W. Younge, late Sheriff.
    The pica, puis darrien continuance in bar, is a waiver of all former pleas. 1 Chitty, 636.
    Tried before Mr. Justice Frost, at Fairfield, Extra Court, July, 1846.
    This was an action on the case against the defendant, for official neglect in not having arrested certain parties, pursuant to an order for bail.
    Suit had been brought on the note, on which the bail process was issued. The pleas were, the general issue and payment, puis darrien continuance. The plaintiff insisted that the plea of the general issue was waived by the second plea, and that the defence should be confined to this last. The objection was overruled, and the plaintiff appealed.
    Several other points were made in this case, and both parties appealed from the ruling of the presiding Judge—and from the verdict of the jury, (which was for defendant,) but, as only one point was decided by the Court of Appeals, it is unnecessary to specify the different grounds taken.
    Clark, Plaintiff's Attorney.
    
    Buchanan, Defendant’s Attorney.
    
   O’Neall J.

delivered the opinion of the Court.

The only ground which will be considered, is the second. The plea pleaded, puis darrien continuance in bar, of the plaintiff’s action, is a clear waiver of the antecedent plea, the general issue. For when a party pleads such a plea, he confesses the action to his new defence, and pleads it against its further maintenance. On authority, the matter is too clear to admit of debate. Chitty in his work on Pleading, (1st vol. 638.) says, ‘‘a plea puis darrien continuance, is not a departure from, but is a waiver of the first plea, and no advantage can be afterwards taken of it.” In Culver v. Barney, 14 Wend, 161, it is held, that a plea puis darrien continuance in bar, is a waiver of all former pleas.” On this ground the case must go back, as it is probable the defendant’s plea, puis darrien continuance, was pleaded without due attention to the legal consequences, he will be allowed to withdraw it, on payment of the plaintiff’s costs to the period of its withdrawal.

The motion for new trial is granted, and leave is given to the defendant on payment of the plaintiff’s costs, to withdraw the plea, puis darrien continuance.

Richardson J., Evans J., Butler J., and Wardlaw J., concurred.  