Frisbie v. Riley , 12 Wend. 249 ( 1834 )

By the Court,

Sutherland, J.

This case falls within the express terms of the statute ; 2. R. S. 356, § 27 ; the plaintiffs have replied several matters in two distinct replications to the defendant’s plea. This cannot be done at common law, 1 Chitty’s Pl. 549, and under our statute, can be done only by leave of the court, 4 Wendell, 211. As such leave will always be granted, where it is shown to be necessary for the attainment of justice, there is no occasion for tolerating any innovation upon the general and established rules of pleading in this respect.

Mr. Chitty says,.that if, in an action of assumpsit, the defendant plead infancy, the plaintiff may reply as to part of his demand, that it was for necessaries ; to other part, that the defendant was of full age at the time of the contract; and to other part, that he confirmed it after he came of age. So if an executor plead several judgments outstanding and no assets ultra, the plaintiff may reply as to one of the judgments nultiel record, and as to another, fraud. 1 Chitty’s Pl. 549. Sergeant Williams, 1 Saund. 137, b. n. 2, says, that according to the general rules of pleading, these replications would be double, and that the better way in the case of executors is, to answer only such judgment as the plaintiff knows to be fraudulent ; although he considers the case of executors anomalous, and not subject in this respect to to the general rules of pleading. In both these cases the different answers to the plea were embraced in one replication, and it was a question therefore of duplicity in pleading, the doctrine in relation to which has been somewhat vague and unsettled ; but it is a different question whether a plaintiff may put in two distinct replications to the same plea. Our statute clearly contemplates that this can in no case be done without special leave of the court.-

This is a case, however, in which leave would have been given, had it been asked. The motion is therefore denied, but the plaintiffs must pay the costs of the motion.