By the Court,
Savage, Ch. J.The demurrers seem to be well taken. It would have been a sufficient answer to the *388replications to have denied either fact alleged in them; for if the defendant bad promised as alleged, and no suit had. been brought within six years which had been continued and was connected with this suit, the plaintiff could not recover; so, if the suit had been brought as alleged, but there had been no promise within six years before suit brought, the plaintiff must fail. The denial of either fact, therefore, was sufficient to bar the plaintiff’s suit. The defendant has traversed both. This constitutes duplicity, and it is no excuse to say that the plaintiff had alleged both facts in his replications to which these rejoinders were answers. Both facts were necessary to make a good replication to a plea of the statute of limitations; the plaintiff could not avoid the statute without shewing a suit brought, and a new promise within six years before the bringing thereof. In the replication both facts combined make but one point, but in the rejoinder they severally constitute a good defence ; the rejoinders are therefore bad. This point was decided in Satterlee v. Sterling, 8 Cowen, 233, and in Tubbs v. Caswell, 8 Wendell, 130. It must be admitted that the cases in this court on this subject are scarcely reconcileable. In Strong v. Smith, 3 Caines, 160, it was held, that a traverse may be taken to any number of facts, if all are necessary to make one point; and the same doctrine was reiterated in Tucker v. Ladd, 7 Cowen, 450; but the case of Tubbs v. Caswell, being in the highest court, must control.
It is contended that the replications are bad, because the suits commenced are alleged to have been brought in 1825, after the commencement of this suit, which appears by the memorandum to have been brought in 1824. There is some discrepancy in the record, but the replication is consistent with itself, and the allegation there, is that the proceedings in this suit are in pursuance of the suit thus commenced.
Under this demurrer the defendant can only take advantage of defects in substance in the pleadings of the plaintiff. The replication is in substance a good answer to the plea of the statute.
The plaintiff is entitled to judgment on demurrer, with leave to defendant to amend, on payment of costs.