Page:Federal Reporter, 1st Series, Volume 5.djvu/272

 260 FEDEBiL BEFOBTEB. �PlATT V. COLE. (Cireuif Court, D. New EampsMre. December 21, 1880.) �1. Pleading — DiBCHAKaB ni Bahkbuptct— Genbbai. IsstrE — New Hampshieb. — A discharge in bonkruptcy since action brought, may be pleaded in New Hampshire, against the f urther continuance of the action, together with the general issue, when such pleas are filed at the same time. — {Sia. T'i-mv. Eunmn,MN. H. 121. �Action on the case with one count in trover, and one spe- cial count to recover the value of certain timber and other chattels, alleged to have been obtained by the defendant from the firm of Mowre, Call & Benson, of New York, now bank- rupts, by way of illegal preference, the plaintiff being their assignee in bankruptcy. The action was entered in October, 1877; but, by consent, the defendant was not required to plead untU January 1, 1880, when four pleas were filed: First, the general issue ; second, third, and foiirth, pleas of a discharge of the defendant in bankruptcy since the action was brought. The plaintiff moved to set aside the first three pleas on the ground that they were overruled by the fourth, which, in its form, was a plea against the further continu- ance of action. �A. B. Hatch, for plaintiff. �Strout dt Holmes, for defendant. �LowELL, C. J. The plaintiff insista that a plea puis dar- rein continuance overrules ail former pleas, and that a plea of discharge in bankruptcy, obtained af ter action brought, should be pleaded either puis darrein, or at least in bar of the fur- ther maintenance of the action, and that in either form it ought to overrule other pleas. By the law of New Hampshire, the fourth plea is not puis darrein, because no pleadings had been entered before it was filed. The question, therefore, is whether, in the form in which it is made, it overrules the others. �In England a question of costs appears to have been in- volved in the point, whether a plea was to the further main- ����