
    Sylvester Hulbert & another vs. Henry Comstock.
    A defendant who has filed one answer to a declaration cannot file a second without leave of court; and if without such leave he is allowed by the court to introduce evidence under a second answer filed within the time allowed by law for filing answers, it is ground of exception.
    Action of tort. The defendant, within the time allowed for answering, but without leave of court, on different days filed two answers to the declaration, setting forth different grounds of defence; and at the trial in the court of common pleas was allowed by Mellen, C. J., against the plaintiffs’ objection, and without having made any motion for leave to file an additional answer, to introduce evidence under both answers; and obtained a verdict. The plaintiffs alleged exceptions.
    
      J. Price, for the plaintiffs.
    
      I. Sumner, for the defendant.
    The practice act allows different consistent defences. St. 1852, c. 312, § 13. Both these answers were seasonably filed, although one of them reached the clerk’s office a day before the other. Any irregularity in filing two papers instead of one was cured by the permission of the court to introduce evidence under both, which was equivalent to granting leave to file the second, if any leave was necessary.
   By the Court.

The defendant has a right to make one answer at one time. When he has made and filed it, the plaintiff has a right to treat it as the answer to the action, and traverse, demur, or take any other step. Any amendment or additional answer must be filed by leave of court. The proceedings in this case were irregular and against the established practice.

Exceptions sustained.  