Richmond v. Little ( 1841 )

By the Court,

Cowen, J.

The only question is, whether the evidence of the writs of copias was admissible without their being replied. We think not. It is the settled practice in England, that when the plea is ante billam, and the plaintiff relies upon his process to save him from the statute, he must reply the process specially. That practice was recognized as correct by this court, in The Bank of Orange County v. Haight, (14 Wend. 83.) The evidence offered and received in this case was wide of the issue.

A new trial must be granted; but the plaintiffs have leave to amend their replication, on paying the costs which have accrued since issue joined.

New trial granted.