No. 3016.

Book 4, tit. 8, chap. 8, sec. 4.

No 3017.

SECTION 4.-OF REPLEADERS AND JUDGMENTS NON OBSTANTE VEREDICTO.

3016.-1. When an immaterial issue has been formed, the court will order the parties to plead de novo, for the purpose of obtaining a better issue; this is called a repleader.

The motion for a repleader is made, when, on an examination of the record, the unsuccessful party conceives the issue joined was an immaterial issue, or such as is not proper to decide the action. In such cases, therefore, the court not knowing for whom to give judgment, will award a repleader.

When a repleader is granted the parties must begin to replead at the first fault. If the declaration, plea, and replication be all bad, the parties must begin de novo; if the declaration be good, and the plea and replication be both bad, the repleader must be as to both; but if the declaration and plea be both good, and the replication only be bad, the parties replead from the replication only. (a)

3017.-2. A judgment non obstante veredicto, is one rendered in favor of the plaintiff, without regard to the verdict obtained by the defendant. The difference between a repleader and a judgment non obstante veredicto, is this, that where a plea is good in form though not in fact, or, in other words, if it contain a defective title, or ground of defence, by which it is apparent to the court, upon the defendant's own showing, that in any way of putting it, he can have no merits, and the issue joined thereon be found for him, there, as the awarding of a repleader could not mend the case, the court, for the sake of the plaintiff, will at once give judgment non obstante veredicto; but when the defect is not so much in the title as in the manner of stating it,

(a) Vide Staples v. Haydon, 2 Salk. 579, for several rules as to repleaders. See Lawes, Pl. 175; Steph. Pl. 119.

No. 3018.

Book 4, tit. 8, chap. 8, sec. 5, § 1.

No. 3019.

and the issue joined thereon is immaterial, so that the court know not for whom to give judgment, whether for the plaintiff or defendant, there, for their own sakes, they will award a repleader; a judgment non obstante veredicto is always upon the merits, and never granted but in a clear case; a repleader is upon the form and manner of pleading. (a)

SECTION 5.—OF PLEAS PUIS DARREIN CONTINUANCE.

3018. A plea puis darrein continuance, or since the last continuance, is one which has arisen upon a fact which has happened since the last continuance of the cause, and after issue was joined. It is proper to consider, 1, in what cases such pleas are allowed; 2, the time when they must be pleaded; 3, their effects; 4, their form.

§ 1.—In what cases pleas puis darrein continuance are allowed. 3019. Pleas of this kind are in abatement or in bar, like other pleas. (b) Though in general the defendant can regularly plead but once, after which, if there be an issue or demurrer, the cause is to be determined upon it, inasmuch as there can be but one verdict in the cause; yet if any new matter happens pending the writ, he may plead it notwithstanding a former plea, provided it be pleaded since the last continuance.

When the matter of defence has arisen since the commencement of the suit, and before issue joined, it cannot be pleaded in bar to the action generally, but must, when it has arisen before plea or continuance, be pleaded as to the further maintenance of the suit. When such matter has arisen after issue joined, puis darrein continuance.

(a) Com. Dig. Pleader, R 18; Bac. Ab. Pleas, M; 18 Vin. Ab. 567; Arch. Civ. Pl. 358.

(6) Lawes, Pl. 173; Bro. Ab. Continuance, pl. 57; Bull. N. P. 310.

No. 3020.

Book 4, tit. 8, chap. 8, sec. 5, § 2, 3.

No. 3021.

The usual matters pleaded puis darrein continuance, are matters in abatement, which have arisen since last continuance, as the marriage of a feme plaintiff; and this may be pleaded after a plea in bar, because the pleading of the latter waives only such matters in abatement as then existed; or they may be in bar, as a release, or the discharge of the defendant as a bankrupt.

§ 2. When pleas puis darrein continuance must be pleaded.

3020. Formerly there were formal adjournments or continuances of the proceedings in a suit, for certain purposes, from one term to another, and, during the interval, the parties were, of course, out of court. When any matter arose which was a ground of defence, since the last continuance, the defendant was allowed to plead it, which allowance was an exception to the general rule that the defendant can plead but one plea of one kind or class. By the modern practice the parties are, from the day when by the ancient practice a continuance would be entered, supposed to be out of court, and the plaintiff is suspended until the day arrives to which, by the ancient practice, the continuance would extend; at that day the defendant is entitled, if any new matter of defence has arisen in the interval, to plead, according to the ancient practice puis darrien continuance, before the next continuance.

A plea puis darrein continuance may be pleaded after the jury are gone from the bar, but not after they have given their verdict. (a)

§ 3.-Effect of a plea puis darrein continuance.

3021. This plea is not a departure from, but is a waiver of the first plea, so that no advantage can afterward be taken of it; and to prevent the plaintiff being delayed ad infinitum, it is said there can be but one

(a) Lawes, Pl. 174.

No. 3022.

Book 4, tit. 8, chap. 9.

No. 3023.

plea puis darrein continuance; for, if a second were allowed, there is no reason why a third, or any unlimited number, should not be permitted.(a)

§4.-Form of the plea puis darrein continuance.(b)

3022. A plea of this kind must be certain, for it is not sufficient to say that since the last continuance such a thing happened, but the day of the continuance must be shown, and also the time and place must be alleged where the matter of defence arose. (c) When pleaded in abatement, the plea begins and concludes like those in abatement which are put in at first to the declaration. A plea in bar, pleaded puis darrien continuance, begins by saying that the plaintiff ought not further to maintain his action against the defendant, and not that the former inquest should not be taken against him; because it is a substantive plea of itself, and comes in place of one previously pleaded; consequently it ought to be concluded with prayer of judgment, if the plaintiff ought further to maintain his action. The plaintiff's replication should begin with saying that he, by reason of any thing alleged by the defendant in his plea, ought not to be barred from further maintaining it. In other respects these pleas, and the pleadings upon them, are governed by the same rules of pleading as prevail in other cases, save that the facts stated in the plea must be verified on oath or affirmation of the defendant.

CHAPTER IX.-OF DEMURRERS.

3023. Demurrer, from the Latin demorari, or from the old French demorrer, to wait or stay, in pleading,

(a) Gilb. C. P. 105; Bro. Ab. Continuance, pl. 5, 41; Lawes, Pl. 174. (b) See the form of a plea puis darrein continuance, Steph. Pl. 82. (c) Lawes on Pl. 174; 1 Chit. Pl. 638.

No. 3024.

Book 4, tit. 8, chap. 9, sec. 1, § 1, 2.

No. 3026.

imports, according to its etymology, that the party will remain and not proceed with the pleadings; because no sufficient statement has been made on the other side; but will wait the judgment of the court, whether he is bound to answer.

A demurrer may be taken by either party, at any stage of pleading before issue is joined. It may be for insufficiency, either in substance or in form; that is, it may be either on the ground that the case shown by the opposite party is essentially insufficient, or on the ground that it is stated in an inartificial manner, for the law requires in every plea, and all other pleadings, two things, the one that it be matter sufficient, the other that it be deduced and expressed according to the forms of law; and if either of these be wanting, it is cause of demurrer.

SECTION 1.-OF THE FORM OF DEMURRERS.

3024. Demurrers are, as in their nature, so in their forms, of two kinds; they are general or special.

§ 1.—Of general demurrers.

3025. A general demurrer is one which excepts to the sufficiency of some previous pleading in general terms, without showing specifically the nature of the objection; and such demurrer is sufficient, when the objection is on matter of substance.(a)

§ 2. Of special demurrers.

3026. A special demurrer is one which excepts to the sufficiency of the pleadings on the opposite side, and shows specifically the nature of the objection and the particular ground of exception; "And the said C D, according to the form of the statute in such case

(a) 1 Chit. Pl. 639; Lawes, Pl. 167; Co. Litt. 72, a; Bac. Ab. Pleas, N 5; Steph. Pl. 61, where there is a form.