Opinion
April, 1794.
In last vacation defendant pleaded three pleas, to wit: (1) non est factum (2) payment (3) discount.
In this term, Read moved to strike out either the plea of non est factum or payment on the ground that under the Statute of Anne inconsistent pleas could not be pleaded. He cited 2 Bl.R. 905, 993, 1326 in order to show that the court would not give leave to plead contradictory pleas. Neither can there be a plea and demurrer to the same part of a narratio, 4 Bac.Abr. 121.
Johns, contra. It has ever been the practice of this Court to allow a defendant to plead as many pleas as he thought proper without regard to their being inconsistent. The words of the Statute do not confine a defendant to consistent pleas but allow him to plead as many as he thinks necessary.
The right to plead several matters is subject to the discretion of the Court because by the Statute of 4 5 Anne [c. 16, 1705] they are to be pleaded with leave of the Court. In a case cited in 4 Bac.Abr. 122 it is said, "And here the Court observed that this Statute was not designed to put plaintiffs under unnecessary difficulties in proving issues foreign to the merits of the matter in question; and though they are to allow any person that asks the favor of pleading double to use the benefit of the Act, yet are they to see the design of it is not abused in multiplying fruitless and impertinent issues." As the pleas entered in this case were warranted by the ancient practice when pleaded, the Court will not strike them out, but hereafter inconsistent pleas will not be allowed without some special cause assigned.