REPLEADE R. Making a new series of pleadings.
Judgment of repleaders differs from a judg ment non obstante 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 judgment ; Ger rish v. Train, 3 Pick. (Mass.) 124 ; Magoun v. Lapham, 19 Pick. (Mass.) 419; while judg ment non obstante is given only where it is clearly apparent to the court that the party who has succeeded has, upon his own show , ing, no merits, and cannot have by any man ner of statement; 1 Chitty, Pl. 568. See Tatum v. Tatum, 19 Ark. 194.
It may be ordered by the court for the purpose of obtaining a better issue, if it will effect substantial justice where issue has been reached on an immaterial point ; 3 B. & P. 353 ; Havens v. Bush, 2 Johns. (N. Y.) 388; Gould, P1. 473 ; as a plea of pay ment on a given day to an action on a bond conditioned to pay on or before that day ; 2 Stra. 994. It is not allowed till after trial for a defect which is aided by verdict ; 2 Saund. 319 b; Bac. Abr. Pleas. If granted or denied where it should not be, it is error ; 2 Salk. 579. See Shippey v. Eastwood, 9 Ala. 198.
The judgment is general, and the parties must begin at the first fault which occasion ed the immaterial issue ; 1 Ld. Raym. 169 ;
entirely anew, if the declaration is imperfect; 1 Chitty, Pl. 568 ; that the action must be dismissed in such case ; Smith v. Walker, 1 Wash. (Va.) 135; with the replication, if that be faulty and the bar be good ; 3 Keb. 664 ; Stevens v. Taliaferro, 1 Wash. (Va.) 155. No costs are allowed to either side; 6 Term 131; 2 B. & P. 376.
It cannot be awarded after a default at nisi wilts; 1 Chitty, Pl. 568 ; nor where the court can give judgment on the whole rec ord ; Willes 532 ; nor after demurrer ; Per kins v. Burbank, 2 Mass. 81; unless, perhaps, where the bar and replication are bad ; Cro. Elia. 318 ; Potter v. Titcomb, 7 Me. 302 ; nor after writ of error, without the consent of the parties ; 3 Salk. 306; nor at any time in favor of the person who made the first fault ; 1 Ld. Raym. 170 ; Hartfield v. Patton, 1 Hempst. 268, Fed. Cas. No. 6,158 a; Bledsoe v. Chouning, 1 Humphr. (Tenn.) 85 ; Andre v. Johnson, 6 Blackf. (Ind.) 375 ; nor after judgment; Page v. Walker, 1 Tyl. (Vt.) 146. The same end is secured in many of the states by statutes allowing amendments. See, generally, Tidd, Pr. 813, 814 ; Com. Dig. Pleader (R 18); Bac. Abr. Pleas (M).