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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.
In such case, they 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 plea and replication be both bad and a repleader is awarded, it must be as to both; but if the declaration and plea be good, and the replication only bad, the parties replead from the replication only.
In order to elucidate this point, it may be proper to give an instance, where the court awarded a repleader for a fault in the plea, which is the most ordinary cause of a repleader. An action was brought against hushand and wife, for a wrong done by the wife alone, before the marriage, and both pleaded that they were not guilty of the wrong imputed to them, which was held to be bad, because there was no wrong alleged to have been committed by the hushand, and therefore a repleader was awarded, and the plea made that the wife only was not guilty. The following rules as to repleaders were laid down in the case of Staples v. Haydon. First. That at common law, a repleader was allowed before trial, because a verdict did not cure an immaterial issue, but now a repleader ought not to be allowed till after trial, in any case when the fault of the issue might be helped by the verdict, or by the statute of jeofails. Second. That if a repleader be allowed where it ought not to be granted, or vice versa, it is error. Third. That the judgment of repleader is general, quod partes replacitent, and the parties must begin at the first fault, which occasioned the immaterial issue. Fourth. No costs are allowed on either side. Fifth. 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; where however, there is a bad bar, and a bad replication, it is said that a repleader may be awarded upon a demurrer; a repleader will not be awarded where the court can give judgment on the whole record, and it is not grantable in favor of the person who made the first fault in pleading.
The difference between a repleader and a judgment non obstante veredicto, is this; that when 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 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 know not for whom to give judgment, whether for the plaintiff or defendant, there for their own sake 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 the form and manner of pleading.