Bond v. Hills

3 Stew. 283

Opinion

By JUDGE SAFFOLD.

It is a necessary inquiry, whether the irregularity of the issue, had a tendency to prejudice the defendant, or preclude a full investigation of the merits. It may be safely inferred, as nothing is shewn to the contrary, that the parties went to trial without any objection on the part of the defendant below, for the want of replication. If his second plea was a valid one in bar of the action, he would have been entitled to á judgment of non pros, for want of a replication, had chosen to move for it. In as much as he claimed no advantage pending the trial, for want of formal issues, and for the reason that the matter of defence set up by the special plea, was no less available under the general issue,

a the only rational presumption is, that the merits have been fully investigated and determined; and that by mutual assent, implied at least the observance of greater formality was waived. That the omission of a similiter to the plea of non-assumpsit, is supplied by legal intendment, has been so well established, that it has ceased to be a matter of contest.

The principle involved in this case, may be assimilated to that recognised by this Court, in reference to pleas in abatement, or demurrers, where the record shews no regular disposition of them, that a trial has been had on a general issue, embracing the true merits of the controversy. In such cases, the rules of decision are, that the imperfect issues are presumed to have been waived by the parties, or treated as nullities.

Judgment affirmed.

LirscoMB, not sitting.

1 Chit. Pl. 474.