OF RE "CHAPTER IX. Of Rejoinders and the subsequent Pleadings; of Issues, Repleaders, Judg ments non obstante veredicto, and Pleas puis darrein continuance,or of Matter pending action; and of Demurrers, and Joinders in Demurrer. A REJOINDER is the defendant's answer to the replication (a), and is in JOINDERS general governed by the same rules as those which affect pleas (b); with (1). this additional quality, that it must support and not depart from the plea (c). If there be several defendants, and they joined in the plea, they cannot sever in the rejoinder (d). It must also be single; and the Court cannot give leave to the defendant to rejoin several matters, for the statute of Anne does not extend to rejoinders (e) (2). Hence it may suffice to refer to the preceding pages, and to the forms which are given in the third volume, without taking further notice of the rejoinder with regard to its general construction and qualities (3). FORM AND When a replication, or a plea in bar in replevin, concludes to the counREQUISITES try, the defendant can only demur; or add the common similiter, which OF. is, "And the defendant doth the like." And it is material that the de fendant should take care that the similiter be added, for otherwise he cannot move for judgment as in case of a nonsuit (ƒ). And where there are several replications, particularly when some conclude to the country, and others with a verification, it may be, " And the defendant as to the said replications of the plaintiff, to the said second and third pleas of him the defendant, and which the plaintiff hath prayed may be inquired of by the country, doth the like" (g). In the King's Bench, if the replication conclude to the country, the plaintiff is at liberty to add the similiter for the defendant, it being a rule in that Court that in all special pleadings, when the plaintiff takes issues upon the defendant's pleading, or traverses the same, or demurs, so that the defendant is not at liberty to allege any new matter, the plaintiff may add the similiter or joinder in demurrer, and make up the paper book without giving a rule to rejoin (h); but otherwise a rule must be given, unless the defendant be bound by a judge's order to [*652] rejoin gratis. In the Common Pleas, where the replication concludes to the country, it is usual for the plaintiff to add the similiter, and make up and deliver the issue with notice of tail; but unless under terms of rejoin (a) Com. Dig. Pleader, H. (b) Ante, 521, 545; Co. Lit. 303, b. (c) See ante, 644; 2 Saund, 189, 190; Com. Dig. Pleader. F. 6 to F. 11. (d) 4 B. & C. 704. (e) Stra. 908; see ante, 226, 532, 649. (f) Seabrook v. Cave, 3 Dowl. 691. (g) See forms, post, vol. iii. (h) Rule, Trin. 1 Geo. 2, n. a; Tidd, 9th edit. 717, 718. (1) See Fowler v. Clark, 3 Day, 231; Tarleton v. Wells, 2 N. Hamp. 306; Boston Hat Manuf. Co. v Messenger, 2 Pick. 223; Warren v. Powers, 5 Conn. 373; Tuttle v. Smith, 10 Wendell, 386. (2) Slocumb v. Holmes, 1 Howard, (Miss.) 139; Neff v. Powell, 6 Blackf. 421. Where several facts constituting but one defence are pleaded by a party, each fact cannot be traversed by the other side; the latter is confined to a denial of the facts alleged, if such denial, verified by proof, will bar the claim, or defeat the defence. Tuttle v. Smith, 10 Wend. 388. Gould's Pl. 407. ing gratis, it seems that in the latter Court the defendant may insist upon FORM AND having a rule to rejoin; and that if the plaintiff add the similiter, the de- REQUISITES fendant may strike it out, and demur to the replication, which is the usual course when the defendant has no merits, and wishes to obtain time (i). The consequences of a defect in or omission of a similiter, have already been considered (k). When the replication concludes with a verification, the rejoinder usually denies it, and concludes to the country, "and of this he the defendant puts himself upon the country, &c." But when the rejoinder introduces any new matter, it must, as in the case of a plea or replication, conclude with a verification, in order that the plaintiff may have an opportunity of answering it (). If the defendant deny several matters alleged in the replication, the rejoinder may conclude to the country, without putting the matters in issue severally and distinctly; thus, if to a plea of infancy, the plaintiff has replied that a part of the goods were necessary clothing, and the residue necessary food, a general denial in the rejoinder concluding to the country, will suffice (m). OF. DERS, &C. Surrejoinders (1) rebutters, and surrebutters, seldom occur in pleading SURREJOIN(n). It may suffice to observe that they are governed by the same rules as those to which the previous pleading of the party adopting them is subject, and the forms which most frequently occur in practice, are given in the third volume (o). From the preceding observations on the different parts of pleading, particularly those relating to traverses (p), we may collect what points may in general be put in issue. As, however, the parties respectively may be disinclined to demur, or otherwise to object to their opponent's pleading, it may be advisable to consider on what issue the parties may venture to proceed to trial, so as to obtain the judgment of the Court, and to avoid the necessity of a repleader, on account of the issue having been upon im material matter. OF ISSUES. *An issue is defined to be a single, certain, and material point, issuing [653] out of the allegations or pleadings of the plaintiff and defendant (q); though in common acceptation, it signifies the entry of the pleadings themselves (r). An issue is either in law, upon a demurrer; or in fact (2) when (1) Potter v. Titcomb, 1 Fairf. 53; Dawes v. Winship, 16 Mass. 291; Williams v. Whitmore, Kirby, 249; Kay v. Goodwin, 16 Mass. 1; Oakley v. Romeyn, 6 Wendell, 521. (2) See Hale v. Dennie, 4 Pick. 501, 503. OF ISSUES. the matter is triable by the court upon nul tiel record, or a jury upon pleadings concluding to the country. Both these descriptions of issues may occur in the same cause as to distinct parts of the declaration. The term "issue" is proper where only one plea has been pleaded, though it be applied to several counts, and issue is joined upon such plea (8). An issue should in general be upon an affirmative and a negative, and not upon two affirmatives; as if the defendant plead that A. is living and the plaintiff reply that he is dead, it is more formal, though not absolutely necesssary, also to deny that he is living (t). Nor should the issue be on two negatives (u). Thus, if the defendant plead that he requested the plaintiff to deliver an abstract of his title, but that the plaintiff did not, when so requested, deliver such abstract, but neglected and refused so to do; the plaintiff cannot reply" that he did not neglect and refuse to deliver such abstract," but should reply, either denying the request, or affirmatively, that he did deliver the abstract (x). But it is not necessary that the negative and affirmative should be in precise words (y); and it will suffice though there be two affirmatives, if the second is so contrary to the first that it cannot in any degree be true. Thus, if duress of imprisonment be plead ed to a bond, it is a good replication that the defendant was at large at his own disposal, and executed the bond of his own free will, and not for fear of imprisonment (z). An issue should also be upon a single and a certain point (a); but it is not necessary that such point should consist of a single fact; and therefore if the defendant in trespass justify under a right of common, and the replication traverses that the cattle were the defendant's own, and levant and couchant, and commonable cattle, it is not multifarious, for all these circumstances are requisite to the point of defence (b). The is [*654] sue also should not be on a negative pregnant (e); but it may sometimes be upon a disjunctive averment (d). In some cases the plaintiff may incorporate in the traverse or issue more than was alleged in the plea (e). The principal quality of an issue is, that it must be upon a material point (f) (1). An informal issue is, where a material allegation is traversed in an improper or artificial manner, (g) (2); and this mistake is aided by verdict by the 32 Hen. 8, c. 30 (h) (3). But a verdict does not help c. 30, s. 1, &c. Issues in fact are not to be 3. (s) Peake's C. N. P. 37. (t) Com. Dig. Pleader, R. 3. (x) 6 East, 557. (y) Co. Lit. 126 a. (z) 2 Stra. 1177; 1 Wils. 6. (b) 1 Burr. 316. Other instances, ante, 605, 618, 619. (c) See as to this, ante, 613, 614, note (u); Com. Dig. Pleader, R. 5, 6; Bac. Ab. Pleas, I. 6. It must be objected to by demurrer, id.; 2 Saund. 319, n 6. (d) Com. Dig. Pleader, R. 7; see ante, 614. (e) 11 East, 410; ante, 611. (f) Com. Dig. Pleader, R. 8. (g) Cro. Eliz. 227; 1 Lev. 32; Carth. (u) Id.; 8 T. R. 280; Bac. Ab. Pleas, I. 371; 2 Mod. 137. (h) Gilb. C. P. 147; 2 Saund. 319, note 6. (1) U. States v. Buford, 3 Peters, 31. On the traverse of a material allegation, the other party is bound to take issue. Hapgood. Houghton, 8 Pick. 451; Dyer v. Stevens, 6 Mass. 389; Dawes v. Winship, 16 Mass. 291. (2) Vide Winstanley v. Head, 3 Taunt. 237. (3) Vide Cobb v. Bryan, 3 Bos. & Pul. 348, 352. an immaterial issue (i) (1), which is, where a material allegation in the OF ISSUES, pleadings is not traversed, but an issue is taken on some other point (2), which, though found by verdict, will not determine the merits of the cause, and would leave the Court at a loss for which of the parties to give judg ment (k). Therefore, where in debt on bond, conditioned for the payment of £60 on the 25th of June, the defendant pleaded payment on the 20th of June, according to the form and effect of the condition, and issue was joined, and the verdict found that he did not pay £60 on the 20th, it was held that the plaintiff should not have judgment; for the issue was out of the matter of the condition, and therefore void, and the money might have been paid on the 25th, though it was not paid on the 20th, so that it did not appear that the condition was broken, and it is not aided by the before mentioned statute (). So where in an action of assumpsit against an administratrix, on promises of the intestate, she pleaded that she (instead of the intestate) did not promise, after verdict a repleader was awarded (m). And where in an action of debt against a lessee for years, the defendant pleaded that before the rent became due, he assigned the term to a third person, of which the plaintiff had notice, and issue was joined on the averment of notice, a repleader was awarded; it being perfectly immaterial whether or not the plaintiff had notice of the assignment, if it were cxecuted (n). regula Reg. Gen. Hil. T. 2 W. 4, orders," that if a defendant, after craving of the oyer of a deed, omit to insert it at the head of his plea, the plaintiff, on modern making up the issue or demurrer book, may, if he think fit, insert it for tions reshim, but the costs of such insertion shall be in the discretion of the taxing pecting officer (o). issues. The Reg. Gen. Iil. T. 4 W. 4, sec. 1 and 2, orders that every declaration and other pleading shall be dated of the day and month when pleaded, and shall be entered on the record made up for trial, and on the [ *655 ] judgment-roll, under the date of the day of the month and year when the same respectively took place, and without reference to any other time or date unless otherwise specially ordered by the Court or a judge; and no entry of continuances by way of imparlance, curia advisari vult, vice comes non misit breve, or otherwise, shall be made upon any record or roll whatever, or in the pleadings, except the juratur ponitur in respectu, which is to be retained. Provided, that such regulation shall not alter or affect any existing rules of practice as to the times of proceeding in the cause. Provided also, that in all cases in which a plea puis darrein continuance is now by law pleadable in Banc, or at Nisi Prius, the same defence may be pleaded with an allegation that the matter arose after the last pleading, or the issuing of the jury process, as the case may be. Provided also, that no such plea shall be allowed, unless accompanied by an affidavit that the matter thereof arose within eight days next before the pleading of such (i) 2 Saund. 319 a, note 6. (k) Id.; Gilb. C. P. 147; 1 Lev. 32. See the instances, id. and Com. Dig. Pleader, R. 18; 3 Bar. & Cres. 449. (1) Cro. Jac. 434; Stra. 994; 2 Saund. 319 b, n. 6. (m) 2 Ventr. 96. (0) Jervis' Rules, 34, note (t). (1) Vide Cobb v. Bryan, 3 Bos. & Pul. 352; Postmaster General v. Reeder, 4 Wash. C. C. R. 678. (2) Vide Strong v. Smith, 3 Caines, 163. OF ISSUES. pleas, or unless the Court or judge shall otherwise order. And in the conclusion of these rules, the forms of an issue, and Nisi Prius record, and judgment, and other forms are given (p). OF REPLEA DERS. When the issue is immaterial, the Court will award a repleader, if it will be the means of effecting substantial justice between the parties, but not otherwise (q) (1). As where in debt on bond, the defendant pleaded performance generally, and the plaintiff replied denying the general performance, and concluding to the country, and stated breaches, by way of suggestion instead of replying them, after verdict for the plaintiff a repleader was awarded, such issue being insufficient (r). In trespass for taking the plaintiff's cattle, the defendant justified taking them upon land demised by him to one W. for rent in arrear. Replication that they were not levant and couchant. The defendant took issue upon that, and after it was found for the plaintiff, he moved for a repleader, which was refused, because the issue might be material; and a repleader is never granted unless the issue must be immaterial (8). The following rules as to repleaders were laid down in the case of Staple v. Hayden (t): first, that at common law, a repleader was allowed before trial, because a verdict did not cure an imma[*656] terial (u) issue, but now a repleader ought not to be allowed till after trial, in any case where the fault of the issue might be helped after verdict by the statute of jeofails (x). Secondly, that if a repleader be denied where it should be granted, or vice versa, it is error. Thirdly, that the Court will not award a repleader excepting where complete justice cannot be answered without it (y). Fourthly, that the judgment of repleader is gen (p) See forms of issue with notes, 3 Chitty's Gen. Prac. 766. (4) 2 Saund. 319 b, note 6; 2 Salk. 579; 6 Mod. 1; 2 Ld. Raym. 922; 3 Salk. 121, S. C.; Cowp. 489. See Chitty on the Game Laws, 1st edit. 965, cites Raym. 458; see post. alone be used, is wholly unsatisfactory, inasmuch as a verdict does not cure an immaterial issue at this day. It should seem that the reason of the distinction between the practice before and since the statute of jeofails is this; that before the statute a verdict did not cure either an immaterial or an (r) 5 Taunt. 386; 1 Marsh. 95, S. C.; see informal issue, and therefore a repleader ante, 507. (s) Ld. Raym. 167; 5 B. & C. 649. (t) 2 Salk. 579; and 6 Mod. 1; 2 Lord Raym. 922; 3 Salk. 121, S. C.; as to a repleader in general, see Com. Dig. Pleader, R, 18; Bac. Ab. Pleas, M.; Doc. Plac. Repleader; Stephen, 2d ed. 130; Tidd. 9th edit. 921; see the forms there referred to, and 2 Saund. 20; and 315 d, n. 6. (u) In the 5th edition of Saunders' Rep. (vol. ii. 319 b, note 6.) it is observed that the word immaterial is in the report of this case, but it should seem to be a mistake; for the reason given, if that word was awarded before a trial, because the trial could not have any effect upon the issue, and therefore the Court will not interfere until the result of a trial is seen, which may render a motion for a repleader unnecessary." (x) Bac. Ab. Pleas, M.; Com. Dig. Pleader, R. 18; 3 B. & P. 352; 2 Saund. 319 b. But where the point in issue is altogether immaterial and could not be modified by the verdict, because collateral to the merits, it would be otherwise. See further 9 Bing. 532. (y) Goodtwine v. Bowman, 9 Bing. 532. (1) Vide Stafford v. Corporation of Albany, 6 Johns. 1. Also, Terrel v. Page, 3 Hen. & Mun. 118; Taylor v. Huston, Id. 161; Cobb ». Bryan, 3 Bos. & Pul. 353; Havens v. Bush, 2 Johns. 388, 389; Bac. Ab. Pleas, (M. I.); Macomb v. Wiber, 11 Johns. 230; Gould v. Ray, 13 Wend. 638. Where the pleadings are so defective, that no valid judgment can be rendered on them, a repleader will be ordered. Gerrish v. Train, 3 Pick. 124; Eaton v. Stove, 7 Mass. 312; Magoun v. Lapham, 19 Pick. 419. But where the only material fact has been passed upon by the jury, the court will not award a repleader. Jenkins v. Stanley, 10 Mass. 262. See Payne v. Barret, 2 A. K. Marsh. 312. |