
    J. Van Holten vs. Lewis & Pepoon.
    The Court, at its discretion, may grant a motion to plead double at any • time, so as not to operate a surprise on the plaintiff; and the plea of non-demiset, and “no rent in arrear,” may be pleaded together.
    T JLillED before Mr. justice Richardson,
    
    The brief stated in this case, that this was an action of replevin, and that the defendant liad avowed for rent in arrear. The plaintiff pleaded “ no rent in arrear,” and ÍS' sue was joined thereon. At the moment when the defendant offered to go to trial, the plaintiffs'counsel moved for leave to substitute the plea of “ no "demise”, in place of his former plea, or for leave to plead “ no demise” in addition to his former plea, which was granted.
    A motion was now made to set aside the order in this case, on the grounds,
    1st. That the Court erred in granting the motion in the alternative.
    2nd. That the Court erred in granting a motion to substitute a good plea for a bad one, and thereby changing the issue.
    3d. That the plea 'of “ no rent in arrear,” and “ no demise,” are inconsistent.
   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.  