terial, the court, on error, will endeavor to accomplish justice by giving all reasonable facility to get the record in proper and intelligible shape before rendering final judgment. Garland v. Davis, 4 How., 131.

§ 2003. In such case judgment will be reversed and the case remanded for further proceedings, the practice of awarding a repleader having gone into disuse. Ibid.

§ 2004. A repleader is never awarded in favor of him who commits the first fault in pleading, nor where one issue raised is material. Hartfield v. Patton,* Hemp., 269.

§ 2005. A court of error cannot award a repleader. United States v. Sawyer,* 1 Gall., 86. § 2006. Non obstante veredicto.-If the defendant plead in bar a matter which is no defense at all, and it be found for him, still he cannot have judgment, but the court will give judgment for the plaintiff, non obstante veredicto; provided the defect in the plea is not in the form but in the matter of it. If it be in the form, or can be made better by other pleadings, a repleader will be awarded. The rule is the same if the facts stated in a demurrer to evidence maintain such a plea. Postmaster-General v. Reeder, 4 Wash., 678.

§ 2007. A judgment non obstante veredicto may be rendered in favor of the plaintiff when the cause of action shown by the declaration is confessed by the plea and no bar pleaded. But a defendant cannot have such judgment, and a motion therefor will be treated as a motion in arrest. He can only move in arrest if the bar shown by the plea be sufficient, and the matter found by the verdict does not answer it. Brown v. Hartford Fire Ins. Co.,* 21 Law Rep., 726.

§ 2008. Departure. If the defendant to an action on a note plead the bankruptcy of the indorser in bar, a replication stating that the note was given to the indorser in trust for the plaintiff is not a departure from the declaration, which alleges the note to have been given by the defendant for value received. Wilson v. Codman, 3 Cr., 193.

§ 2009. A judgment had been recovered by the United States for a penalty which was afterwards remitted. The marshal, to whom an execution was issued, had made a levy, but, on being served with the warrant of remission, redelivered the goods to the debtors. An action was thereupon brought against him in the name of the United States for the moiety of the penalty allowed to the officers, but the declaration alleged no interest in them but only in the United States. The defendant pleaded the remission. The plaintiffs replied the interest of the officers. On special demurrer, held to be a departure. United States v. Morris, 1 Paine, 231.

§ 2010. Duplicity consists of joining distinct causes of action, defenses or breaches in one pleading, but not of alleging several facts which make up one cause of action, etc. Jackson v. Rundlet, 1 Woodb. & M., 381.

§ 2011. Duplicity is an error of form only. McKay v. Campbell, 2 Abb., 120.

§ 2011a. A replication to a plea setting up the statute of limitations, that the debt sued for arose upon an account between merchant and merchant, and that the plaintiff was beyond seas when the cause of action arose, is double. Craig v. Brown,* Pet. C. C., 443. Ş 2012. A replication of non-payment on the day and non-acceptance in satisfaction is bad for duplicity. United States v. Gurney,* 1 Wash., 446.

§ 2013. To plead in one count that defendant prevented plaintiff from voting for several officers, or that defendant in several ways prevented plaintiff from voting, is double. McKay v. Campbell, 2 Abb., 120.

§ 2014. The statement of more than one sufficient matter as a ground of action or defense in the same count or plea is forbidden by the common law and by the code of Oregon. But by the code objection to duplicity is to be taken by motion to strike out, instead of by special demurrer as at common law. McKay v. Campbell, 1 Saw., 374.

§ 2015. Waiver.-- An answer is an appearance and waives a plea to the jurisdiction, and therefore no such plea can be set up in an answer. Vose v. Reed, 1 Woods, 647.

§2016. Pleading over to a declaration adjudged good on demurrer is waiver of the demurrer. Stanton . Embrey, 3 Otto, 548.

§2017. A refusal or omission by the defendant to join in a demurrer to a plea is a waiver of the plea. Morsell v. Hall, 13 How., 212.

§ 2018. If a misjoinder of parties is not taken advantage of by a plea in abatement it is waived by pleading to the merits. Minor v. Mechanics' Bank of Alexandria, 1 Pet., 46.

§ 2019. When the record does not disclose what disposition was made of a demurrer, but an answer was subsequently filed on which the parties went to a hearing, the presumption is that it has been abandoned. Basey v. Gallagher, 20 Wall., 670.

§ 2020. Allegations and pleadings to the merits are a waiver of the preliminary inquiry as to the proprietary interests, and an admission that the party is rightly in court and capable of contesting the merits. United States v. 422 Casks of Wine, 1 Pet., 547.

§ 2021. When one count in a declaration was left unanswered, so that plaintiff might have had judgment upon nil dicit, yet as he did not move for this, and both parties proceeded

throughout the trial as if that count did not exist, it was held, when the case, came up upon exceptions, that in the light of the proceedings the count must be understood to be waived." Aurora v. West,* 7 Wall., 82.

§ 2022. A plaintiff, having failed to file his replication within the time required by law, asked leave to file it, and defendant objected. No decision was given, but plaintiff filed his replication with the clerk, and the parties proceeded to trial as if it were properly in. Plaintiff obtained judgment, which the court on motion reversed. Held, on error, that defendant had waived his objection and his right to move for judgment, and a mandate was issued to enforce judgment for the plaintiff. Osgood v. Haverty,* McCahon, 182.

§ 2023. Misjoinder of actions should be taken advantage of by demurrer, motion to strike out, or perhaps by motion to compel plaintiff to elect; and the right to object for misjoinder is waived by taking issue upon the plaintiff's petition. Fraley v. Bentley,* 1 Dak. T'y, 25.

§ 2024. A party who means to except to the jurisdiction of the court in a case of seizure must plead to that jurisdiction. If he files a claim and plea to the merits, on which the parties are at issue, it is a waiver of any exception to the jurisdiction. On such claim and plea no question as to the place of seizure is before the court. The Abby, 1 Mason, 360.

§ 2025. If a plea to the jurisdiction and a plea of non assumpsit be put in, and the issue be made up on the latter plea only, no notice being taken of the former, and upon this state of the pleadings the cause goes on to trial, the plea to the jurisdiction is considered as waived. Bailey v. Dozier, 6 How., 23.

§ 2026. Where a scire facias was issued against special bail, who pleaded two pleas, to the first of which the plaintiff took issue, and demurred to the second; and the cause went to trial upon that state of the pleadings without a joinder in demurrer, and the court gave a general judgment for the plaintiff, this was not error. Morsell v. Hall, 13 How., 212.

§ 2027. If a foreign consul, being sued in a state court, omits to plead his privilege of exemption from the suit, and afterwards, on removing the judgment of the inferior court to a higher court by writ of error, claims the privilege, such an omission is not a waiver of the privilege. Davis v. Packard, 7 Pet., 276.

§ 2028. A plea since the last continuance waives the issue previously joined, and puts the case on that plea. Yeaton v. Lynn, 5 Pet., 223.

§ 2029. If plaintiff demurs to the defendant's plea to a chancery attachment, he thereby waives his right to move to strike out the plea on the ground that it was pleaded without giving special bail. Irwin v. Henderson, 2 Cr. C. C., 167.

§ 2030. L., as executor of W., instituted an action of assumpsit on April 8, 1826. The declaration stated L. to be executor of W., and claiming as executor for money paid by him as such. The defendant pleaded non assumpsit, and a verdict and judgment were given for the plaintiff. After the institution of the suit and before the trial the letters testamentary of L. were revoked by the orphans' court of the county of Alexandria, D. C., he having, after being required, failed to give bond with counter security, as directed by the court. As the plaintiff was incontestably executor when suit was brought and issue joined, and could then rightfully maintain the action, and the revocation of the letters testamentary was not brought before the court by a plea since the last continuance, as it might have been, the defendant must be considered as having waived his defense and resting his cause on the general issue. Yeaton v. Lynn, 5 Pet., 223.

2031. Under the Missouri code of pleading every defense must be taken by demurrer or by answer; and all defenses except want of jurisdiction, and that the facts stated in the petition, which is the first pleading, do not show a cause of action, unless taken by demurrer or special answer, are waived. Tyler v. Magwire, 17 Wall., 253.

§ 2032. Variance.- A party is not allowed to state one case in a bill or answer, and make out a different one by proof; the allegata and probata must agree, and the latter must support the former. Boone v. Chiles, 10 Pet., 177.

§ 2033. A variance is immaterial which does not change the nature of the contract. Ferguson v. Harwood, 7 Cr., 408.

§ 2034. Variance must be objected to when the evidence is introduced. Roberts v. Graham, 6 Wall.,

378.

§ 2035. All the particulars set forth in pleading, descriptive of a record or instrument on which the party relies, must be established by proof, or the variance will be fatal. Whitaker v. Bramson, 2 Paine, 209.

§ 2036. Variances between the writ and declaration are pleadable in abatement only; they cannot be taken advantage of by general demurrer. Duvall v. Craig, 2 Wheat., 45.

§ 2037. Any misdescription of a record in pleading is fatal. Hence, in an action of debt on a judgment, misdescriptions in the declaration of the amount and the parties were both fatal variances. Lawrence v. Willoughby,* 1 Minn., 87.

§ 2038. In declaring upon a decree for a certain sum of money with interest, the omission

to state the clause of the decree giving interest will constitute a variance. Thompson v. Jameson,* 1 Cr., 283.

§ 2039. A declaration which misstates the date of a bond sued on is bad for variance on general demurrer. Cooke v. Graham,* 3 Cr., 229.

§ 2040. Upon an allegation of negligence of defendant and his servant, it is not a variance to prove negligence of the servant. Dobbin v. Foyles,* 2 Cr. C. C., 65.

§ 2041. In an action of debt against Daniel Carroll and William Brent, survivors of Charles Carroll and Eli Williams, upon articles of agreement, and averring the articles to be "sealed with the seals of the said Williams and Carrolls, and the said William Brent," if on profert and oyer the articles appear to be signed and sealed thus: "Williams & Carrolls (seal),” "Wm. Brent (seal)," "Thomas Tingey (seal)," the variance is fatal on general demurrer. Tingey v. Carroll, 3 Cr. C. C., 693.

§ 2042. An averment that the plaintiffs have an entire interest in themselves in the subject insured cannot be supported by evidence of a joint interest with others; nor can an averment of a joint interest with others be supported by proof of a sole interest. Catlett v. Pacific Ins. Co., 1 Paine, 594.

§ 2043. In pleading a record it is not indispensable that the precise words of the record shall be observed. Surplusage or immaterial omissions in matters of substance, in pleading records, are attended with no other consequences than in other cases. But as to matters of description it is otherwise, and there the record produced must conform strictly to the plea. Whitaker v. Bramson, 2 Paine, 209.

§ 2044. An allegation of a combination between the master and mate to ill-treat and oppress a seaman is not supported by proof that each of them separately assaulted and illtreated him, without some presumptive evidence of concert between them. Jenks v. Lewis, 1 Ware, 51.

§ 2045. An action for a certain sum, stated in the declaration to be the amount of a decree obtained by the plaintiff, cannot be supported by evidence of a decree for the same sum, with interest from a certain day to the day of passing the decree. Thompson v. Jameson, 1 Cr.,

282.

§ 2046. The interest of a copartnership cannot be given in evidence on an averment of individual interest, nor an averment of the interest of a company be supported by a special contract relating to the interest of an individual. Graves v. Boston Marine Ins. Co., 2 Cr., 419.

§ 2047. Where the declaration alleged an undertaking in consideration of a contract entered into by the plaintiff to build a ship, and the evidence was of a contract to finish a ship partly built, it was held that the variance was fatal. Smith v. Barker,* 3 Day (Conn.), 303.

§ 2048. A by-law, approved on the 27th of March, will not support an averment of a by-law passed on the 26th. Common Council of Alexandria v. Brockett, 1 Cr. C. C., 505.

§ 2049. In slander, evidence of words spoken in the second person will not support an averment of words spoken in the third person. Birch v. Simms, 1 Cr. C. C., 550.

§ 2050. An averment of a demise from year to year for three years, at $120 a year, is not supported by evidence of a denise from year to year for two years, at $120 a year, and for one year at $100. Dorsey v. Chenault, 2 Cr. C. C., 316.

§ 2051. An award, signed by A. and B., as an award made in pursuance of a reference to them, will not support an averment of an award or umpirage made by the said B. as umpire, upon the failure of the two original arbitrators, A. and C., to deliver their award within the time limited by the bond. Goldsborough v. McWilliams, 2 Cr. C. C., 401.

§ 2052. A note payable in sixty days, "with interest from date," will not support a declaration upon a note payable in sixty days without interest. Coyle v. Gozzler, 2 Cr. C. C., 625. § 2053. In an action of ejectment, if the plaintiff count upon a lease to himself from a person whom the evidence shows to have been dead at the time, it is bad. Connor v. Bradley, 1 How., 211.

§ 2054. A declaration averring that a due-bill was made dum sola precluded the admission as evidence of a due-bill made to the wife during the coverture, and for a consideration accruing during the coverture. Smith v. Clarke, 4 Cr. C. C., 293.

2055. The declaration in an action against one partner only never gives notice of the claim being on a partnership transaction. The proceeding is always as if the party sued was the sole contracting party; and if the declaration were to show a partnership contract, the judgment against the single party could not be sustained. Barry v. Foyles, 1 Pet., 311.

§ 2056. When the declaration professes to set forth the specification in a patent as part of the grant, the slightest variance is fatal, and the defendant is entitled to claim a nonsuit. In general it is sufficient to state the grant in substance in the declaration. Tyron v. White, Pet. C. C., 96.

§ 2057. A nonsuit was entered by direction of the court where the evidence varied from

the case stated in the declaration; the latter stating the goods as belonging to the plaintiff, of which the defendant, as bailiff, was to make profit for him, and charging the defendant as receiver by the hands of A., B. and C., being the money of the plaintiff; and the evidence proved that the money received was that of himself and his partners and was received on joint account. Jordan v. Wilkins, 2 Wash., 482.

§ 2058. A variance in pleading which would be fatal at common law may not be so in courts which proceed according to the civil law; as the rules which govern the former courts are seldom applicable to proceedings in the latter. Crawford v. The William Penn, 3 Wash., 484.

§ 2059. A court proceeding under the civil law will not allow a party to be surprised by evidence materially variant from the case stated in the pleadings, but will allow an amendment. Ibid.

§ 2060. When an information for violating a by-law of a town stated that the penalty accrued to the state, and by charter it appeared that the penalty accrued to the town, judgment was arrested. Virginia v. Hoof,* 1 Cr. C. C., 21.

§ 2061. Where the writ is brought by the United States of America a verdict for the United States is sufficient. Sears v. United States,* 1 Gall., 257.

§ 2062. A variance between a petition under the Louisiana code and the facts found by the court, when the latter were warranted by the proofs, and the judgment conforms with law and justice, will not be a fatal defect on error. Railroad Co. v. Lindsay, 4 Wall., 650.

44

$2063. The declaration contained two counts. The first, setting out the cause of action, stated, for that whereas the said defendants and copartners, trading under the firm name of J., T. & Co., in the life-time of said W. T., on the 1st of March, 1821, were indebted to the plaintiffs, and being so indebted," etc.; the second count was upon an insimul computassent, and began, "and also whereas the said defendants, afterwards, to wit, on the day and year aforesaid, accounted with the said plaintiffs of and concerning divers other sums of money, due and owing from said defendants," etc. The defendants, to maintain the issue on their parts gave in evidence to the jury that W. T., the person mentioned in the declaration, died on January 6, 1819, that he was formerly a partner with J. and P. T., the defendants, under the firm of J., T. & Co., but that the partnership was dissolved in October, 1817, and that the defendants formed a copartnership in 1820. The defendants prayed the court to instruct the jury that there was a variance between the contract declared on and that given in evidence, W. T. being dead. By the court: The only allegation in the second count in the declaration from which it is argued that the contract declared upon was one including W. T. with J. and P. is "that the said defendants accounted with the plaintiffs." But this does not warrant the conclusion drawn from it. The defendants were J. and P. T.; W. T. was not a defendant, and the terms, "the said defendants," could not include him. There was no variance between the contract declared upon in the second count and the contract proved upon the trial with respect to the parties thereto. Schimmelpennick v. Turner, 6 Pet., 1. § 2064. Aider by verdict. A good cause of action defectively stated in the declaration will be aided by verdict; but if it appear that the cause of action was defective a verdict will not aid it. McDonald v. Hobson,* 7 How., 745.

§ 2065. Where a fact must necessarily have been proved at the trial to justify the verdict, and the declaration omits to state it, the defect is cured by the verdict, if the general terms of the declaration are otherwise sufficient to comprehend the proof. Dobson v. Campbell, 1 Sumn., 319.

2066. Want of averment of citizenship in a declaration filed in the United States court is a defect of substance and not cured by verdict; so also of the averment of value of property in dispute when necessary to give jurisdiction. Smith v. Jackson, 1 Paine, 486.

§ 2067. A plea purporting to answer all the breaches in the declaration, which answers only some of them, is good after verdict. Such defect can only be taken advantage of by special demurrer. United States v. Willard, 1 Paine, 539.

§ 2068. Where an action is for foreign money, and its value is not averred, a verdict cures the defect. Brown v. Barry, 3 Dal., 368.

§ 2069. If a proper case is laid in the declaration or libel, but not described with precision, the court after verdict will presume that the want of precision was supplied by evidence: aliter, if no ground is laid at all. United States v. The Virgin, Pet. C. C., 7.

§ 2070. Surplusage in pleading does not in any case vitiate after verdict. Carroll v. Peake, 1 Pet., 18.

§ 2071. A verdict does not cure a variance between the covenant alleged in the declaration and that produced on oyer. Ingle v. Collard, 1 Cr. C. C., 152.

§ 2072. Non-joinder of a party plaintiff is a defect which is cured by verdict. Greenleaf v. Schell, 6 Blatch., 225.

§ 2073. Where three pleas were filed and a replication was put in to only one of them, the

other two, which should have concluded to the country being improperly concluded with a verification, but the trial proceeded as if the pleadings were complete, the defect will be cured by verdict; and this though the jury accidentally found the "issue" for plaintiff instead of "issues." Laber v. Cooper, 7 Wall., 565.

§ 2074. Where there is an informal plea to an action of trespass, which is not demurred to, but on which issue is taken and a trial had, such informality cannot be considered upon a writ of error. Deitsch v. Wiggins, 15 Wall., 539.

§ 2075. In an action for the infringement of a patent, an omission to aver that the assignment was properly recorded is cured by verdict. Dobson v. Campbell,* 1 Sumn., 326.

§ 2076. Where a matter is so essentially necessary to be proved, to establish the plaintiff's right to recover, that the jury could not be presumed to have found a verdict for him unless it had been proved at the trial, the omission to state that matter in express terms in the declaration is cured by verdict if the general terms of the declaration are otherwise sufficient to comprehend it. Ibid.

§ 2077. Where it was omitted to allege in the declaration on a note a demand of payment on the person of the maker, but it averred a demand at the bank "where the note was negotiable," such averment in the declaration could not be true, unless there was an agreement between the parties that the demand should be made there. Brent v. Bank of the Metropolis, 1 Pet., 89.

§ 2078. And the averment must have been proved at the trial or the plaintiff could not have obtained a verdict and judgment; and after a verdict judgment will be sustained. Ibid. 2079. The omission of the declaration to allege a material date is a defect cured by verdict. Stockton v. Bishop,* 4 How., 155.

§ 2080. Though the record does not state who the jurors were nor that they were sworn, yet a court of error will presume that justice was administered in the ordinary form. Ibid. $2081. When the record is brought before the court on error, defects of form are to be disregarded. Ibid.

§ 2082. Where a statute (of Illinois) provides that an assignee of a note may sue an assignor if suit against the maker would be unavailing, a general averment in the declaration that suit would be unavailing is bad on demurrer; but as such an averment will permit proof of the facts thus imperfectly stated, it will be presumed after verdict that they were proved, and the defect will be cured. Wills v. Claflin, 2 Otto, 135.

VI. AMENDMENTS.

SUMMARY — Allowance of amendments not open to revision in court of error, § 2083.— Rights after substantial amendment to declaration, § 2084.— Amendment to answer allowed as of course to supply inadvertent admission, § 2085.- New cause of action not to be introduced at trial, § 2086.— Libel in rem not to be changed into libel in personam, § 2087.

§ 2083. The act of the circuit court in allowing the amendment of the declaration by the addition of a count is not subject to revision in the supreme court, though the amendment amount to the addition of a new cause of action. Wright v. Hollingsworth, § 2058–90.

§ 2084. When the declaration is amended by the addition of a count, defendant has a right to plead de novo, but will waive the right by going to trial without objection. Ibid.

§ 2085. When the answer in a libel suit omitted to deny plaintiff's allegations as to the amount of damage sustained, and this was evidently the result of inadvertence, held, that an amendment would be allowed, and plaintiff's counsel should have anticipated that such a motion would be made and granted. Goodyear Dental Vulcanite Co. v. White, § 2091.

§ 2086. An amendment introducing a new cause of action cannot be made at the trial. Postmaster-General v. Ridgway, § 2092.

§ 2087. A libel in rem cannot be changed by amendment into a libel in personam. The Young America, $ 2093-94.

NOTES. See §§ 2095-2130.]

WRIGHT v. LESSEE OF HOLLINGSWORTH.

(1 Peters, 165–169. 1828.)

Opinion by MR. JUSTICE TRIMBLE.

STATEMENT OF FACTS.- This action of ejectment was commenced in the circuit court held in East Tennessee by suing out a writ of capias ad responden