EVANS v. BOGGS, 1 Del. Cas. 18 (1794)

Wilson’s Red Book, 13[*]

EVANS et al. v. BOGGS.

Supreme Court of Delaware.
1794.

[*] This case is also reported in Bayard’s Notebook, 63.
An incomplete report is found in Read’s Notebook, 23.

Read moved to strike out either the plea of non est factum
or payment, being inconsistent under the Statute of Anne, and cited 2 Bl.R. 905, 993, 1326. Johns, contra, insisted the Statute does not confine defendant to plead consistent pleas, and the practice has been such.

READ, C. J.

The right to plead several matters is subject to the discretion of the court because by the Statute, 4 5 Anne [c. 16, § 4(1705)], they are to be pleaded by the leave of the court. In a case cited 4 Bac.Abr. 122, it is said, “And here the court observed that this statute was not designed to put plaintiffs under

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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.

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