Van Holten v. Lewis

12 S.C.L. 12

Opinion

Mr. Justice Colcock

delivered the opinion of the Court.

The counsel seemed to rely most strongly on the sitúa • tion of the parties, that this was the third Court, and the defendant ready for trial. Upon looking into the minutes of the Court, it appears that this motion was granted pn the last day of the Court, on which no issues are tried. There was therefore no improper exercise of that discretion with which the Court is unquestionably vested. This was in effect no more than a motion to plead double, which may be granted at any time so as not to operate as a surprise on the plaintiff. And here it was granted on the last day of one sitting, and the plaintiff of course vrould have time enough to reply and procure testimony, if any were necessary, before the sitting of the next Court. As to the inconsistency of the pleas, it is not greater than many which are daily admitted. For instance, in debt on bond, non est factum, and payment; and these are very common.

The motion is dismissed.

Justices Nottj Gantt, Johnson and Huger, concurred.