repleader
n . 第二次申诉
第二次申诉
Repleader \
Re *
plead "
er \ (-?
r ),
n . (
Law )
A second pleading ,
or course of pleadings ;
also ,
the right of pleading again .
[
1913 Webster ]
Whenever a repleader is granted ,
the pleadings must begin de novo . --
Blackstone .
[
1913 Webster ]
REPLEADER ,
practice .
When an immaterial issue has been formed ,
the court will order the parties to plead de novo ,
for the purpose of obtaining a better issue this is called a repleader .
2 .
In such case ,
they must begin to replead at the first fault .
If the declaration ,
plea and replication be all bad ,
the parties must begin de novo ,
if the plea and replication be both bad and a repleader is awarded ,
it must be as to both ;
but if the declaration and plea be good ,
and the replication only bad ,
the parties replead from the replication only .
3 .
In order to elucidate this point ,
it may be proper to give an instance ,
where the court awarded a repleader for a fault in the plea ,
which is the most ordinary cause of a repleader .
An action was brought against husband and wife ,
for a wrong done by the wife alone ,
before the marriage ,
and both pleaded that they were not guilty of the wrong imputed to them ,
which was held to be bad ,
because there was no wrong alleged to have been committed by the husband ,
and therefore a repleader was awarded ,
and the plea made that the wife only was not guilty .
Cro .
Jac .
5 .
See other instances in :
Hob .
113 :
5 Taunt .
386 .
4 .
The following rules as to repleaders were laid down in the case of Staples v .
Haydon ,
2 Salk .
579 .
First .
That at common law ,
a repleader was allowed before trial ,
because a verdict did not cure an immaterial issue ,
but now a repleader ought not to be allowed till after trial ,
in any case when the fault of the issue might be helped by the verdict ,
or by the statute of jeofails .
Second .
That if a repleader be allowed where it ought not to be granted ,
or vice versa ,
it is error .
Third .
That the judgment of repleader is general ,
quod partes replacitent ,
and the parties must begin at the first fault ,
which occasioned the immaterial issue .
Fourth .
No costs are allowed on either side .
Fifth .
That a repleader cannot be awarded after a default at nisi prius ;
to which may be added ,
that in general a repleader cannot be awarded after a demurrer or writ of error ,
without the consent of the parties ,
but only after issue joined ;
where however ,
there is a bad bar ,
and a bad replication ,
it is said that a repleader may be awarded upon a demurrer ;
a repleader will not be awarded where the court can give judgment on the whole record ,
and it is not grantable in favor of the person who made the first fault in pleading .
See Com .
Dig .
Pleader ,
R 18 ;
Bac .
Abr .
Pleas ,
M ;
2 Saund .
319 b ,
n .
6 ;
2 Vent .
196 ;
2 Str .
847 ;
5 Taunt .
386 ;
8 Taunt .
413 ;
2 Saund .
20 ;
1 Chit .
Pl .
632 ;
Steph .
pl .
119 ;
Lawes ,
Civ .
Pl .
175 .
5 .
The difference between a repleader and a judgment non obstante veredicto ,
is this ;
that when a plea is good in form ,
though not in fact ,
or in other words ,
if it contain a defective title or ground of defence by which it is apparent to the court ,
upon the defendant '
s own showing ,
that in any way of putting it ,
he can have no merits ,
and the issue joined thereon be found for him there ,
as the awarding of a repleader could not mend the case ,
the court for the sake of the plaintiff will at once give judgment non obstante veredicto ;
but where the defect is not so much in the title as in the manner of stating it ,
and the issue joined thereon is immaterial ,
so that the court know not for whom to give judgment ,
whether for the plaintiff or defendant ,
there for their own sake they will award a repleader ;
a judgment ,
therefore ,
non obstante veredicto ,
is always upon the merits ,
and never granted but in a very clear case ;
a repleader is upon the form and manner of pleading .
Tidd '
s Pr .
813 ,
814 ;
Com .
Dig .
Pleader ,
R 18 Bac .
Abr .
Pleas ,
M ;
18 Vin .
Ab .
567 ;
2 Saund .
20 ;
Doct .
Plac .
h .
t .;
Arch .
Civ .
Pl .
258 ;
1 Chit .
Pl .
632 ;
U .
S .
Dig .
XII .
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