Jenness v. Peck

15 N.H. 20

Opinion

Gilchrist, J.

In this case, the defendants have pleaded a discharge in bankruptcy. To this the plaintiffs reply, that before the proceedings in bankruptcy were commenced, they attached the property of the defendants, and that they were duly summoned to answer to the action. The defendants rejoin, that the district court have decreed that the property should be delivered to the assignee; that this decree has been served on the deputy sheriff who attached the property, and therefore that he could not hold the property to be levied upon in this suit. This rejoinder, the plaintiffs contend, tenders an immaterial issue, and for this reason they move the court to direct a repleader.

No issue, either of law or of fact, has been joined between the parties. Where one of the parties, passing by what is marterial in the adverse pleading, tenders an issue upon a point which is not so, and obtains a verdict, the judgment must, according to the general rule, be arrested. In such cases, where the only fault is in the issue, the court on arresting the judgment will award a repleader, in order that a better issue may be framed. 3 Saund. 319, c, note 6, Bennett vs. Holbeck. The main object of awarding it is to enable the parties to substitute a good issue for a bad one. It can properly be awarded only after an issue in fact joined and tried. In Wilts vs. Polehampton, 3 Salk. 306, it is said that it has often been ruled that a repleader can never be awarded after a demurrer, nor after a writ of error, but only after issue joined. Nor can it be awarded whore the defendant makes default at nisi prius, because he is then out of court. Staple vs. Heydon, 2 Ld. Raym. 922. At common law a repleader was allowed before trial, because a verdict did not cure an immaterial issue; but now a repleader ought never to be allowed till trial, because the fault of the issue may be helped after verdict, by the statute of jeofails. Ibid. The verdict may possibly cure the fault in the pleadings, and thus supersede the necessity of repleading; and this point the court will not generally decide by anticipation, but will await the finding of the jury. Gould on Pl., cap. 10, § 49. It is also laid down in a recent case to be a clear rule, that the court will not grant a repleader except where complete justice cannot be answered without it. Goodburne vs. Bowman, 9 Bing. 532; Symmers vs. The King, Cowp. 510. Numerous cases are found where a repleader has been awarded or refused. Com. Dig., Pleading, R, 18. But in none of them has the question arisen on motion. Until the pleadings are closed, and it appears what will be their termination, the court cannot interfere. Perhaps the party will demur. If so, that will settle the legal rights of the parties.

Motion denied.