Storms v. Storms, 1 Edw. Ch. 358

Storms v. Storms

1 Edw. Ch. 358 | New York Court of Chancery | 1832

The Vice-Chancellor.

The question is, whether a special replication can be filed without leave of the court 1 It cannot. Such a practice would directly militate against the sixty-fifth rule.

The ancient practice of the Court of Chancery allowed replications to be filed. But it was found to lead to great inconvenience, and was abolished, or, rather, discontinued.

Nevertheless, in a few cases, it may still be permitted.

If the present replication is to stand, it will require a | then, perhaps, may come a surrejoinder, and the court *360will be drawn in to consider all the nicety of special pleading, as used in courts of law. “ Special replications,” says Hinde, Page 285, “ with all their consequences, are now out of usd, “ and the plaintiff is-.to be relieved according to the form of “ the bill, whatever new matter "may have been introduced by “ the defendant’s plea or answer.’^» The same principle is to be found in Brown’s late work on Practice, vol. 1, p. 53. of putting in a special replication, the complainant might have moved to amend his bill, by charging the pretences of the defendant as to the want of jurisdiction, and alleging the contrary to be true. And, therefore, it is said in the books, that the complainant, by his pleading, not only puts a bill upon file, but also, virtually, a special replication. Whenever he sets out, and negatives the' alleged pretences of the defendant, the remedy, it will be seen, is open to the complainant without a distinct special replication. At the present day, we only have demurrers to bills; whereas, an encouragement of the course which this complainant has adopted, would lead to de-, murrers,' to replications, and other pleadings. Such a practice cannot be tolerated here, and I must order the replication to be taken off the files, with costs.

.Order accordingly.