
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1811.
    B. S. Phillips v. Rebecca Willeson.
    If a replication be double, it will be liable to a demurrer, for defect of form, special cause being shewn; but the court will not, on a demurrer in such case, regard a formal defect in the plea, not shewn for special cause of demurrer.
    Motion to reverse a judgment on demurrer, by Bay, J., in the District Court of Edgefield. The action was trespass to try titles» to land. Defendant plead in abatement, that the plaintiff was an alien, and concluded wjth a verification. Plaintiff replied, by confessing and avoiding the plea, setting forth the treaties made with Great Britain, in 1783, and 1794 ; and also, an act of assembly of jgg-^ t0 re]¡eve g,a]ph Spence Phillips from the penalties of the confiscation act. To this replication the defendant demurred ; and for causes of demurrer, among other things, assigned the following, viz., that the same is double, requiring several distinct answers.
    Plaintiff joined in demurrer, and there was judgment for the defendant.
    [The replication set forth the treaties, and act of assembly, at large ; so that they formed part of the replication.]
    By the treaty of 1783, it is stipulated, that there shall be no further forfeitures, or confiscations, on account of the war. The treaty of 1794, art. 9, provides for British subjects, who then held lands in the United States, that they should continue to hold them according to the nature and tenure of such estates, with a power to grant, devise, &c., as natives. The replication also set forth the will of the plaintiff’s father, containing a devise of the land in question, to the plaintiff’, dated in 1796.
    By the act of assembly of 1801, it appears that the estates of the plaintiff’s father were confiscated in 1783, and sold. (See the confiscation act.) This act restored to the plaintiff all the right of the State to mortgages, and to indents taken on the sales of the estates, with a deduction of one fifth.
    GoodwiN, in support of the motion,
    argued, that the whole matter of the replication was 'consistent; and although the plaintiff derived his right to maintain this action from different sources, yet they were concurrent in their consequences, and together formed his right to support the action ; and, therefore, the charge of duplicity could not be sustained. Cited Chitty on Pleading, 549, 552. 3 Saund. 211, in a note. 1 Ld. Raym. 338-9. 2 do. 1092. Also, 1 Bos. and P. 60. And further contended, that, as on demurrer, the court will go back to the first fault; and as the conclusion of the plea is ill, the pourt ought, at all events, to order the defendant to answer over. ^
    Stark, on the contrary,
    insisted, that the replication was double, tendering different issues, distinct and independent; requiring distinct pleas, different from each other. Cited 5 Com. Dig. 376, 539. 5 Bac. Abr. 443. 3 do. 382. 4 D. and E. 485, 585. 1 Wils. 334. The conclusion of the plea is right. It affords an opportunity to the plaintiff to plead new matter in avoidance.
    
      [Pleas in abatement conclude to the writ,'or declaration, and that the same may be quashed. If plea concluded improperly, plaintiff should have demurred; waived by pleading in abatement, 3Salk-19'J
   Smith, J.,

. . delivered the opinion.of the court. Gkimke, J., did not hear the argument. The replication is clearly double ; and the judgment of the District Court -was correct. The right to be derived from the treaties with Great Britain, cannot be connected with the right the plaintiff may be entitled to, under the act of our State legislature. The estate in question was .confiscated, or it was not. If it was not confiscated, the plaintiff’s father might, under the treaty, although an alien, devise it to his son, which it seems he did so. If this devise can be supported by the facts alleged on this ground, the act of assembly of 1801 must be out of the question. If the land in question was confiscated, and sold, as the act of 1801 states it was, then the treaties can have no bearing on the case; for the confiscation and sale were long prior to the treaty of 1794, and the treaty of 1783 did not bind the States, individually, to desist from confiscation. It only bound the congress of the United Státes to recommend such a measure, which was done. The replication, then, appears to present two distinct grounds of avoidance of the plea of alienage, totally independent of each other. It is, therefore, obnoxious to this demurrer for duplicity. The conclu. sion of the plea of alienage appears to be right. It gave the plaintiff an opportunity of replying new matter in avoidance, without directly denying the fact of alienage.

Motion rejected.

Goodwin, after the opinion of the court was declared, moved for leave to amend his replication, on payment of costs, which was opposed by Staek., who contended, that this court would not entertain an original motion ; and cited 5 Com. Dig. 487. 2 Wils. 173. Barnes. But the court granted the leave prayed for. It was con. sidered as a power necessarily involved in the power of deciding on the matter submitted ; and this court may grant or refuse a motion conditionally, as justice may require.  