
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1807.
    Hamilton, Comptroller, v. Benjamin Waring.
    Defendant pleaded non est factum, and issue thereon. When the trial came on, defendant moved to plead an-additional plea of performance of the condition of the bond, which was granted. On motion to reverse this decision, it was held to be correct.
    Debt on bond. Plea, non est factum. At the first court, after issue joined, in Richland district, before Bkevakd, J., on motion in behalf of the defendant, he was allowed to plead in addition to the general issue, performance oí the condition of the bond. The bond was conditioned for the due performance of the duties of commissioner oí the public treasury. This additional plea was objected to as inconsistent, and incompatible, but the objection was overruled.
    The motion in this court was to reverse the order of the District Court, and to reject the plea of performance.
    Stakke, in support of the motion,
    cited Barnes, 359, 5 D. and E. 97, Jenkins v. Edwards. In the case last cited, it appears that a similar plea, on a like occasion, had been disallowed. The court said that the stat. 4 Ann, c. 16, had given them a discretionary power, either to permit, or to refuse several matters to be pleaded; and that in their discretion, they ought not to permit such matters as the present to be pleaded, lest there should be an incongruity on the record ; since, if the defendant succeeded on the first plea, it would appear that there never existed such a bond as that declared on, and yet that the defendant had admitted that something was due on the same bond. The same incongruity would result, it was contended,' in the principal case.
    Nott, E contra.
    
    The cases in Barnes cannot be relied on. They are various and irreconcileable. The court has a discretionary power. This power was exercised by- the Diarist Court, and the; power, so exercised, cannot be properly controlled by this court, especially where it appears to tend to the advancement of justice. Cited 3 Wils. 380. In covenant, non est fact, and performance allowed to be pleaded. So in this court, the general issue and statute of limitations, and payment, has been allowed.
   Waties, j.,

delivered the unanimous opinion of all the judges, that the District Court had properly allowed the defendant to plead the additional plea. That it did not appear that any serious inconvenience would result from allowing several distinct and apparently inconsistent pleas, and the courts have been of late liberally inclined to allow them, where they do not appear to be intended to delay or embarrass, and may be necessary or properly advantageous for the defendant.  