
    Richmond and another vs. Little.
    Where the defendant pleads actio non accrevit, &c., within six years next before exhibiting the bill, the plaintiff will not be allowed, under a general replication taking issue simply, to prove a copias issued in proper time, and a continuance of it j but must reply the matter specially.
    . Assumpsit, tried at the Onondaga circuit, on the l7th of April, 1840, before Moseley, C. Judge. The declaration contained the common money counts, to which the defendant pleaded actio non accrevit, &c., within six years next before the exhibiting of the bill, and the plaintiffs replied, taking issue, instead of showing a copias sued out and continued. On the trial, however, the circuit judge received in evidence two writs of copias, and directed a verdict for the plaintiffs. The evidence was objected to, and the defendant now moved for a new trial on a case.
    
      D. Pratt, for defendant.
    
      H. Sheldon, for plaintiffs.
   By the Court,

Cowen, J.

The only question is, whether the evidence of the writs of copias was admissible without their being replied. We think not. It is the settled practice in England, that when the plea is ante billam, and the plaintiff relies upon his process to save him from the statute, he must reply the process specially. That practice was recognized as correct by this court, in The Bank of Orange County v. Haight, (14 Wend. 83.) The evidence offered and received in this case was wide of the issue.

A new trial must be granted; but the plaintiffs have leave to amend their replication, on paying the costs which have accrued since issue joined.

New trial granted.  