though in common acceptation, it signifies the entry of the pleadings them- OF ISSUES selves (r). An issue is either in law, upon a demurrer; or in fact (1) when 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, and though it be applied to several counts, and issue is joined upon such plea (s). 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 necessary, also to deny that he also 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 pleaded 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 issue also should not be on a negative pregnant (c); but it may sometimes be upon a disjunctive averment (d). In [*654] 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) (2). An informal issue is, where a material allegation is trav As (r) As to the form of such entry, see Tidd, 9th edit. 719, 733; and Tidd's App. c. 30, s. 1, &c. Issues in fact are not to be noticed in the Demurrer Book in K. B. 7 B. & C. 642. to the language of this entry, it is said that the acts of a court ought to be in the present tense, as "præceptum est," not "præceptum fuit," but the acts of the party may be in the preterperfect tense, as, venite et protulit hic in curia quandam querelam suam," and the continuances are in the preterperfect tense, as "venerunt," not "veniunt," i Mod. 81; 2 Saund. 393, n. 1; 1 Stra. 608; but see 1 T. R. 320. (s) Peake's C. N. P. 37. (t) Com. Dig. Pleader, R. 3. (1) See Hale v. Dennie, 4 Pick. 501, 503. (u) Id.; 8 T. R. 280; Bac. Ab. Pleas I. 3. (x) 6 East, 557. (y) Co. Lit. 126 a. (z) 2 Stra. 1177; 1 Wils. 6. (a) Com. Dig. Pleader, R. 4. (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. (ƒ) Com. Dig. Pleader, R. 8. (2) U. States v. Buford, 3 Peters U. S. 31. On the traverse of a material allegation, the other party is bound to take issue. Hapgood v. Houghton, 8 Pick. 451; Dyer v. Stevens, 6 Mass. 389; Dawes v. Winship, 16 Mass. 291. OF ISSUES ersed in an improper or artificial manner (g) (1); and this mistake is aided by verdict by the 32 Hen. 8, c. 30 (h) (2). But a verdict does not help an immaterial issue (i) (3), which is, where a material allegation in the pleadings is not traversed, but an issue is taken on some other point (4), 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 judgment (k). Therefore, where in debt or 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 (1). 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 executed (n). Of the modern regulations Reg. Gen. Hil. T. 2 W. 4, orders, "that if a defendant, after craving oyer of a deed, omit to insert it at the head of his plea, the plaintiff, on respecting making up the issue or demurrer book, may, if he think fit, insert it for him, but the costs of such insertion shall be in the discretion of the taxing officer (o). issues. The Reg. Gen. Hil. T. 4 W. 4, sec. 1 and 2, orders that every declaration and other pleading shall be dated of the day and month when [*655] pleaded, and shall be entered on the record made up for trial, *and on the 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 (g) Cro. Eliz. 227; 1 Lev. 32; Carth. 371; (h) Gilb. C. P. 147; 2 Saund. 319, note 6. (k) Id.; Gilb. C. P. 147; 1 Lev. 32. See (1) Vide Winstanley, v. Head, 3 Taunt. 237. (3) Vide Cobb v. Bryan, 3 Bos. & Pul. 352; Postmaster General v. Reeder, 4 Wash. C. C. R. (4) Vide Strong v. Smith, 3 Caines, 163. be pleaded with an allegation that the matter arose after the last pleading, OF ISSUES. 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 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 RE 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 PLEADERS 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 (s). 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 immaterial (u) issue, but now a repleader ought not to be allowed till after [*656] 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 (p) See forms of issue with notes, 3 Chitty's Gen. Prac. 766. (q) 2 Saund. 319 h, 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. (r) 5 Taunt. 386; 1 Marsh, 95, S. C.; see 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 alone be used, is wholly un- (x) Bac. Ab. Pleas, M.; Com. Dig. Pleader, (1) Vide Stafford v. Corporation of Albany, 6 Johns. 1. Also, Terrel v. Page, 3 Hen. & Mun. 118; Taylor v. Huston, Id. 161; Cobb r. Bryan, 3 Bos. & Pul. 353; Havens v. Bush, 2 Johns. 388, 389; Bac. Ab. Pleas, (M. I.); Macomb. v. Wilber, 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. WHEN NECESSA RY, &c. Distinction between a repleader and judg ment non obstante 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 general, quod partes replacitent, and the parties must begin again at the first fault which occasioned the immaterial issue (z): thus, if the declaration be insufficient, and the bar and replication are also bad, the parties must begin de novo (1); but if the bar be good, and the replication ill, at the replication (a) (2). Fifthly, no costs are allowed on either side (b). Sixthly, that a repleader cannot be awarded after a default at nisi prius. To which may be added, that in general a repleader cannot be awarded after a demurrer or writ of error, without the consent of the parties, but only after issue joined (c). Where, however, there is a bad bar, and a bad replication, it is said that a repleader may be awarded upon a demurrer (d) (3). A repleader may also be awarded, where the Court can give judgment on the whole record (e); and it is not grantable in favor of the person who made the first fault in pleading (ƒ) (4). Where a plea confesses the action, and does not sufficiently avoid it, judgment shall be given upon the confession without regard to a verdict for the defendant, which is called a judgment non obstante veredicto (5) and in such case a writ of enquiry shall issue (g). The distinction between a veredicto. repleader and a judgment non obstante veredicto is this: that where the 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 [*657] sake of the plaintiff, will at once give judgment non obstante veredicto (6), but where the defect is not so much in the title as in the manner of stating it, and the issue joined thereon is immaterial, so that the Court knew not for whom to give judgment, whether for the plaintiff or the defendant, then for the more satisfactory administration of justice they will award a repleader. A judgment therefore non obstante veredicto is always upon the merits, and never granted but in a very clear case; a repleader is upon (1) Sed vide Smith v. Walker, 1 Wash. 135, 636, where the court says, "When we are seeking for a good foundation upon which to erect future pleadings, and find all defective, including the declaration itself, the uncertainty cannot be cured:' and therefore the Court of appeals in giving the judgment, that ought to have been given in the Court below, ordered the suit to be dismissed. (2) Vide Stevens v. Taliaferro, 1 Wash. 155. (3) Vide Perkins v. Burbank, 2 Mass. 81. Leave to replead may be granted, after argument on demurrer. Potter v. Titcomb, 7 Greenl. 302. The Court will not award a repleader after judg ment, on a material issue. Page v. Walker, 1 Tyler, 146. See Dawes v. Gooch, 8 Mass. 488. (4) Vide Kitley v. Deck, 3 Hen & Mun. 388; Bledsoe v. Chouning, 1 Humph. 85; Andre v. Johnson, 6 Blackf. 375. (5) Roberts v. Dame, 11 N. Hamp. 226. (6) Lambert v. Taylor, 6 Dowl. & Ryl. 188. NECESSA RY, &c. the form and manner of pleading (h). If a plea be defective, and the de- WHEN fendant succeed at the trial thereon, the question whether the plaintiff can have judgment non obstante veredicto, or whether there ought to be a repleader, depends upon the question, whether the plea does or does not contain a confession of a cause of action; if a cause of action be confessed by the plea, and the matter pleaded in avoidance be insufficient, the plaintiff is entitled to judgment notwithstanding the verdict. If the plea do not confess a cause of action, there must be a repleader (i). MATTERS OF OF DE FENCE ARISEN PENDING THE ACTION. Before the uniformity of process act, 2 W. 4, c. 39, it was decided that OF PLEAS a payment to assignees of a bankrupt plaintiff, after a latitat had issued, and before declaration, might be given in evidence under the general issue (k). When matter of defence had arisen after the commencement of the THATHAVE suit, it could not be pleaded in bar of the action generally, but must when it had arisen before plea or continuance, be pleaded as to the further maintenance of the suit (!) (1); and when it had arisen after plea, and before replication, or after issue joined, then puis darrein continuance (2). The instances of a defendant having obtained his certificate as a bankrupt pending the suit, and before plea (m), and of an executor pleading judgments obtained against him after the issuing of the writ, and before plea, were exceptions (n). (j). If any matter of defence has arisen after an issue in fact has been joined, or after a joinder in demurrer (o), it may be pleaded by the *defendant: as [*658 ] that the plaintiff has given him a release (p) (3) or that the plaintiff is a bank (h) Tidd, 9th edit 922; Bac., Ab. Pleas M.; Com. Dig. Pleader, R. 18; 5 Taunt. 386; 1 Marsh. 95, S. C.; 3 Taunt. 237. (i) Ld. Raym. 390. Per Abbott, C. J. 4 B. & C. 152, 6 Ď. & R. 199; see the instances, id. (j) As to these pleas in general, see Bac. Ab. Pleas, Q., Com. Dig. Abatement, 1, 24, 34; Doct. Plac 297; Bul. N. P. 309; Gilb. C. P. 101; Tidd, 9th edit. 847; and see the forms, post, vol. iii.; and see Reg. Gen. Hil. T. 4. W. 4, reg. 2, Bosanquet's Rules, 130 to 134. (k) 1 B. & Adol. 568; and 10 Bar and Cres. 676. (1) 4 East, 507; ante, 585; Lut. 1178; Com. Dig. Abatement, I, 24; plaintiff become an alien enemy, 3 Campb. 152. (m) 9 East, 82. (n) 4 East, 507, 8; 9 Id. 84; 1 Marsh. 70, 280; 5 Taunt. 333; and an executor may plead puis darrein continuance, a judgment purposely confessed by him for a bona fide debt, though such judgment be in debt on a simple contract; 5 Taunt. 603; 1 Marsh. 280, S. C.; 3 B. & C. 317; 5 D. & R. 175. (0) Hob. 81; Com. Dig. Abatement, I. 24. acc.; Ld. Raym. 266; Stra. 493, contra; see Com. Dig. Abatement, I. 24. (p) Bul. N. P. 309; see the form, post, vol. iii. But in ejectment the defendant is not allowed to plead a release by the lessor of the plaintiff, 4 M. & S. 300; 2 Chit. Rep. 323, S. S. C.; and see 7 Taunt. 9. And where a landlord with the permission of his bailiff, who had made a distress for rent, commenced an action in the bailiff's name against the sheriff for taking insufficient pledges, and the bailiff afterwards, without the landlord's privity, released to the sheriff, who pleaded it puis darrein continuance, the Court of C. P. set aside the plea, and ordered the release to be delivered up to be cancelled. 7 Taunt. 48; so where husband and wife lived separate under a deed, by which he stipulated that his wife should enjoy as her separate property all effects, &c. which she might acquire, and that he would not do any act to impede the operation of the deed, but would ratify proceedings in their names for recovering such property; and the (1) Cowell v. Weston, 20 Johns. 414; Lee v. Levy, 6 Dowl. & Rayl. 475; Yeaton v. Lynn, 5 Peters, U. S. 224. (2) Semmes v. Naylor, 12 Gill & John, 358; Longworth v. Flagg, 10 Ohio, 300; Burns v. Hindman, 7 Ala. 531; Tuffs v. Gibbons, 19 Wend. 639; Morrow v. Morrow, 2 Brevard, 394; Thomas v. Van Dozen, 6 Missou. 201; Wyatt v. Richmond, 4 Humph. 365. Such matter cannot be given in evidence at the trial. Jackson v. Rich, 8 Johns. 194; Jackson v. Ramsey, 3 Cowen, 75. (3) See Kimball v. Wilson, 3 N. Hamp. 96. |