
    COURT OF APPEALS,
    SEPTEMBER TERM, 1847.
    Mary Martin, Plaintiff in Error, vs. John Wilson, Defendant in Error.
    B is not regular to move to strike out a replication as frivolous, in ordinary cases; the remedy is, to demur.
    A replication mil not be stricken out as frivolous or inappropriate, unless it is evident that it is an insult to the court, or an improper paper to be on file; in such case the court will order it to be taken firom the files.
    This was a motion by Defendant in error to strike out, as frivolous, the replication of Plaintiff in error to the plea of the Defendant in error.
    Theplea was stated as follows: “ And says that the said Mary Martin ought not to have or maintain her writ of error aforesaid, because protesting that there is no error, either in the record and proceedings aforesaid or in the giving of the judgment aforesaid; for plea nevertheless in this behalf, the said Wilson says that the said writ of error of the said Mary Martin, was not brought within two years after the rendering of the said judgment by the said Supreme Court of Judicature of the people of the state of Hew York; and this he, the said John Wilson, is ready to verify; wherefore he prays that the said Mary Martin be barred of her said writ of error in this behalf, &c.”
    The replication to this plea stated: “ that she by reason of anything in that plea alleged, ought not to be barred from having and maintaining her aforesaid writ of error, because she says that the said judgment of the said Supreme Court, was in manner as aforesaid given for said Defendant in error, and was entered up, perfected, recorded, and docketed by the said Defendant in error, and was by him so perfected, entered up, recorded, and docketed on the 28th day of August, in the year 1846, and that the writ of error of the said Mary Martin was brought within two years after the perfecting, entering up, recording, and docketing of the said judgment of the said Supreme Court, to wit, on the 27th day of August, in the year 1846. Wherefore, inasmuch as the said Defendant in error has not denied the said assignment of errors by this deponent, nor otherwise answered the same, the said Plaintiff in error prays judgment, &e.”
    N. Hill, Jr., Counsel for motion.
    
    G. F. Comstock, opposed.
    
    J. H. Magher, Atty for Deft in error.
    
    H. M. Western, Atty for Plffs in error.
    
   The court held the case under advisement two or three days,-when they gave their decision by" Jewett, Chief Judge, stating that the proper remedy of the Defendant in error, was by demurrer; there was no practice or authority to authorize a replication to be stricken out as frivolous or inappropriate, unless it was evident that it was an insult to the court, or an improper paper to be on file; in such case the court would order it to be taken from the files. Motion denied with costs.  