Hunter v. Wilkinson

Citations

• 44 Miss. 721

Syllabus

<p>1. Pleading — Duplicity.—Duplicity in ft plea is embracing in it two or more distinct separate answers to the preceding pleading where one would be complete and sufficient.</p> <p>2. Same — Same—But matters, however multifarious, will not make the pleading double that together constitute but one connected provision.</p> <p>3. Same — Replications—Common daw as to double. — At common law, the plaintiff cannot reply two distinct replications to the defendant’s plea.</p> <p>4. Same — Same—Statutoby bule as to numbek. — By Rev. Code, 495, art. 105, the plaintiff may reply in answer to the plea, as many several matters as he shall think necessary to maintain his action, on condition of the leave of the court, upon affida. vit setting forth the truth of the new matter ; and the court has no discretion to waive the affidavit or mitigate the terms.</p> <p>5. Same — Void pleading steicken out on- motion. — If, without malting the affidavit, the plaintiff files a second replication to the defendant’s plea, it is a nullity, and should be reached, not by a demurrer, but by a motion to remove it from the files.</p> <p>6. Evidence — Books oe account — Evidence to impeach must be geemain to the issue_In an action of indebitatus assumpsit, by a physician to recover the price of services rendered, he introduced his books of account. There was no plea of payment or set-off. But the defendant sought to prove that the plaintiff had been known to receive money payment in other people’s accounts, which he never entored on the books. Eeld: The evidence was not gormain to the issue.</p> <p>7. Statute oe limitations — Open accounts. — Rev. Code, Í01, art. 20, embraces two classes of accounts. 1st. Mutual; 2d. All other open acoounts. As to the former, the cause of action shall be deemed to have accrued from the true date of the last item proved. As to the latter, from the date the several items thereof bocamo due.</p> <p>8. Same — Same—Local usage — Special contract. — Parties may contrac