
    Corsa & Bull v. Nichols.
    In a, petition for a new trial for mispleading; if the petitioner alleges, that he ought to have set up other facts, he must show that he can prove them; but if lie says he ought to have traversed the plea of the adverse party and that it could not he proved, it is sufficient.
    PetitioN for a new trial in an action on a note brought by them against said Nicbols, in which he plead a special plea in bar; to wbich the plaintiffs made an insufficient reply; which was demurred to; and judgment — That the reply was insufficient. Alleging that they had misplead; and that they ought to have traversed the plea in bar, as it was not true, nor could the defendant have proved it.
    Plea in abatement — That the petition does not contain sufficient reason for granting a new trial; tliat it does not go far enough, in that they have not stated how they could support their new reply. Demurrer.
   By the Court.

Tbe plea is insufficient. Tbe plaintiffs have said all that they could say, upon tbe ground tbe petition goes. They say there is no truth in tbe plea in bar, and that tbe defendant cannot prove it. Whereas bad tbe plaintiffs stated a new and different reply, such as they ought to have made, that would avoid tbe defendant’s plea; in that case they must have shown, not only, that it was sufficient in point of substance, but that tbe reply was true in fact and also bow they could prove it.

Same point was adjudged at Windham in March A. D. 1773; Stores brought a petition for a new trial, in an action Hovey v. him, for mispleading, and stated bow be ought to have plead, but did not show bow be could avail himself of tbe new plea, or that be could prove it; for this cause tbe petition was negatived.  