Ames v. West — 4 Wend. 211

Majority

p. 211

Ames vs. West.

Headnote

Double replications or rejoinders cannot bo interposed but by leave of the court obtained on special application.

Double replication. To a plea of set off the plaintiff replied, 1. Nil debet; 2. The statute of limitations, alleging

p. 212

the second plea to he interposed by ham of the court first had and obtained. On an affidavit that no rule had been received allowing a double replication, the defendant moved that one of the replications be stricken out. The plaintiff shewed it was important to his rights that he should be allowed to retain both replications.

Kellogg Sandford, for defendant.

B. Davis Noxon, for plaintiff.

By the Court,

By the revised statutes courts are authorized to allow double replications or rejoinders whenever it shall become necessary for the attainment of justice, on special application made to them by the party desiring so to plead. (2 R. S. 356, § 27.) The practice under the statute allowing double pleas as well here as in England, has been to permit parties to put in such pleas, although actual have was not obtained. It seems, however, that the legislature intended a distinction should be observed between pleas and replications, &c. As to pleas, it is left to the discretion of the party, subject to the power of the court to compel him to elect where he pleads inconsistent pleas ; but as to the subsequent pleadings, they are to be interposed only when allowed by the court on special application. (2 R. S. 352, § 9, and 356, § 27.) The double replications, therefore, in this case were improperly interposed without the previous leave of the court obtained; but inasmuch as the plaintiff now shews a necessity for thus pleading, the replications are permitted to stand upon payment of the costs of this motion.