Merry v. Gay ( 1826 )

Parker C. J.,

after advising with the other judges, said the Court were less concerned to ascertain the preponderance of authority in the English books, than to adopt the most reasonable and beneficial rule for their own guidance ; that the practice of this Court, in regard to granting leave to' plead double, more resembled that of the King’s Bench, than that of the Common Pleas at the time of the decisions cited by the plaintiff’s counsel ; that in all courts less strictness on this subject now prevailed than formerly ; and that as it might not unfrequently be important to a defendant to have the benefit of both these pleas, especially in actions of debt and covenant, the Court were unanimously of opinion, that the pleas were well pleaded together.¹

Plaintiff took nothing by his motion.

1 It appears to be generally understood as a sound rule, at the present day, that mere inconsistency between two or more pleas in bar is no objection to their being pleaded together. Gould's Pleading, 434; Chitty’s Pl. (6th Am ed.) 592 to 595. See Union Bank v. Ridgley, 1 Harr. & Gill, 324; Wilson v Ames, 5 Taun 340; Pleading several matters, 3 Bingh. 635.