Stiles v. Lacy , 7 Ala. 17 ( 1844 )

ORMOND, J.

— We do not think it proper to examine the merits of the question presented on the pleadings, as the replication to the plea is so defective that it cannot be sustained. It contains several distinct and unconnected matters of de-fence — that the Court in New Hampshire had not jurisdiction to render the decree, because the defendant was a citizen of Alabama — that the application was voluntary and fraudulent, and that the plaintiff had no notice of the intended application.

The statute authorizing several pleas extends only to pleas to the declaration, and does not embrace replications, rejoinders, or any of the subsequent pleadings. This was held by this Court in Gray v. White, 5 Ala. Rep. 490, as it regards several rejoinders to a replication. \ The replication in this case is precisely the same as if three, distinct replications had been formally made 10 the plea. If that could be tolerated, it would be in the power of the other party to make several rejoinders to each replication, and thus an infinity of issues would be presented.

Our statute allowing several pleas is in substance that of the 4 Anne, under which it has always been held that it do es not extend to the pleadings subsequent to the pleas to the declaration. 5 Bac. Ab. Pleas 447, K. 3, Com. Dig. Pl. E. 2.

The duplicity of this replication is not protected by the statute abolishing special demurrers. Duplicity in a plea would not be reached by a special demurrer, because the party may plead more pleas than one, and therefore to embrace several distinct matters of defence in one plea, as it would in effect be pleading several pleas, is matter of form and not substance. But as but one replication can be made to a plea, duplicity is matter of substance and not form, which was all that the statute was intended to provide against.

Let the judgment be reversed and the cause remanded, that the plaintiff may, if he thinks proper, amend his replication^..