Nelson v. Lounsbury

[127] By the Court, McCoun, J. If the replication, which is the subject of the demurrer in this case, had concluded with a verification, it would have been clearly bad within the principle decided in Howell v. Babcock's Ex'rs, (24 Wend. 488,) because in form it would have tendered unnecessary and immaterial matter to be put in issue, as-was done in that case. But this replication concludes ,to the country, taking issue upon the plea of actio non accrevit, &c. and thus steers clear of the objection of its being new and immaterial matter which it attempts to introduce and put in issue, in avoidance of the plea. The principle in regard to the manner of replying to a plea of the statute of limitations, where the plaintiff would avail himself of the time allowed by the 8th section of the statute, in an action brought against executors or administrators ; or of that allowed by the 9th section in an action by executors or administrators, (2 R. S. 365, 2d ed.) is the same in both cases. It is unnecessary to set out, in pleading, the time which these provisions of the statute allow for the bringing of actions after the death of the testator or intestate,‘and after the granting of letters testamentary or of administration. |t is matter of evidence under the issue “ infra sex annos," and when proved, the time thus allowed will not be taken into the computation of the six years. Here the pleadings, as they stand, present an issue upon the point whether the action accrued within six years of the time of bringing it, or not. The next question then is, whether the replication — containing, as it does, matter that is unnecessary to be stated in order to make this issue — is bad for duplicity or multifariousness ? It is clear, from the authorities, that the unnecessary statements of this replication, all tending to the one point put in issue, are to be regarded as mere surplusage ; and that superfluous matter in a replication concluding to the country does not vitiate. (9 Wend. 306. 3 Hill, 547. 1 Denio, 427.) The demurrer 'must be overruled with costs,