REPLEADER. In Pleading. Making, a new sertes of pleadings.
Judgment of repleader differs from ajudgMent non oberante veredicto in this : that it is allowed by the court to do justice between the parties where the defect is in the form or manner of stating the right, and the issue joined is on an immaterial point, so that it cannot tell for whom to give judgmentt.7 Moss. 31:2; 3 Pick. Mass. 124; 19 id. 419 ; While 'judgment non °Wattle is giveu only whore it is clearly apparent to the oourt that the party who has succeeded has, upon his own shoWing, tio me rits, and cannot havo by any manlier Of statement. 1 Chitty, Plead. 568. See 19 Ark. 194: 2. It may be ordered by the court for the purpose of obtaining a better issue, if it Will effect substantial justice vrhere issue has been reached on an immaterial point, 3 Bos. & P. 353 ; 2 Johns. N. Y. 388; 6 id.1; 16 id. 230 ; 3 Hen. & M. Va. 118, 161. As a plea of pay ment on a given day to an action on a bond conaitioned to pay on or before that day. 2 Strange, 994. It is not to be allowed till after trial for a defect which is aided by ver dict: 2 Salk. 579 ; 2 Saund. 319 b ; Bacon, Abr. Pleas. If granted or denied Where it should not be, it is error. 2 Salk. 579. See 9 Ala. N. s. 198.
The judgment is general, and the parties must begin at the first fault which occasioned the immaterial issue, 1 Ld. Barn. 169 ; en
tirely anew, if the declaration is imperfect, 1 Chitty, Plead. 568 ; that the action must be dismissed in such case, 1 Wash. Va. 135, with the replication, if that be faulty and the bar be good. 3 Kebl. 664; 1 Wash. Va. 155. No costs are allowed to either, side. 2 Ventr. 196 ; 6 Term, 181 ; Bos. & P. 376.
3. It cannot be• awarded after a default a,t nisi pins, 1 Chitty, Plea.d. 568, nor where the court can give judgment on the whole re cord, Willes, 532, nor after demurrer, 2 Mass. 81 ; 8 id. 488, unless, perhaps, where the bar and replication are had-, Croke Eliz. 318 ; 1 And. 167; 7 Me. 302, nor after writ of error, without the consent of the parties, 3 Salk. 306, nor at EDT Gine in favor of the person who made the Arst faith, 1 Ld.Raym. 170; Dongl. 396 ; 1 Henipst. 268; 1 Humphr. Tenn. 85 ; 6 Blackf. Ind. 375 ; see 3 Hen. & M. Va. 388, nor after judgment. 1 Tyl. Vt. 146. The same end is secured iti many of the states by statutes allowing amendments. Set, generally, Tidd, Prect 813, 814 ; Co tnyns, Dig. Pleader (R 18); Bacon, Abr. Pleat (MI.