Tinuance

Under the ancient law, there were continuances, i. e. adjournments of the proceedings for certain purposes, from one day or one term to another; and, in such cases, there was an entry made on the record, expressing the ground of the adjournment, and appointing the parties to re-appear at a given day. In the interval between such continuance and the day appointed, the parties were not bound to plead. But it sometimes happened, that after a plea had been pleaded, and while the parties were out of court, in consequence of such continuance, a new matter of defence arose, which did not exist, and which the defendant had consequently no opportunity to plead, before the last continuance. This new defence he was therefore entitled, at the day given for his re-appearance, to plead as a matter that had happened after the last continuance, puis darrein continuance. In the same cases that occasioned a continuance in the ancient common law, but in no other, a continuance still takes place. At the time, indeed, when the pleadings are filed and delivered, no record exists, and there is, therefore, no entry at that time, made on the record, of the award of a continuance; but the parties are, from the day when, by the ancient practice, a continuance would have been entered, supposed to be out of court, and the pleading is suspended, till the day arrives to which, by the ancient practice, the continuance would extend. At that day, the defendant is entitled, if any new matter of defence has arisen in the interval, to plead it according to the ancient plan, puis darrein continuance. A plea puis darrein continuance, is not a departure from, but is a waiver of the first plea, and is always pleaded by way of substitution for it, on which no proceeding is afterwards had. 1 Salk. 178; 2 Stran. 1105; Hob. 81. Great certainty is requisite in pleas of this description. Doct. Pl. 297; Yelv. 141; Cro. Jac. 261; Freem. 112; 2 Lutw. 1143; 2 Salk. 519; 2 Wils. 139; Co. Entr. 517 b. It is not sufficient to say generally that after the last continuance such a thing happened, but the day of the continuance must be stated, and where the matter of defence arose. Id. ibid. Bull. N. P. 309. Pleas puis darrein continuance are either in bar or abatement, Com. Dig. Abatement, I 24; and are followed, like other pleas, by a replication and other pleadings, till issue is attained upon them. Such pleas must be verified on oath before they are allowed. 2 Smith's R. 396; Freem. 252; 1 Strange, 493. See, generally, Bac. Abr. Pleas, Q; Com. Dig. Abatement, I 24, 34; Doct. Pl. 297; Bull. N. P. 309; Lawes Civ. Pl. 178; 1 Chit. Pl. 634; Steph. Pl. 81.