
    *Mangum v. Flowers.
    Tuesday, April 16th, 1811.
    Trespass Quare Clausum Fregit — Pleading.—In trespass quare clausum fregit, the declaration charging the trespass, generally, in a parish and county; if the defendant plead not guilty, and a justification “that the land in question was his freehold,” the plaintiff mustreply to the justification, as well as j oin issue upon the plea of not guilty. 
    
    This was an action of trespass quare clausum fregit, in the county court of Sussex, against Samuel Mangum and William Mangum. The declaration charged the trespass generally, “At the parish of -, in the county aforesaid.” According to the transcript of the record, “The defendants appeared by their attorney, and pleaded not guilty, and filed their plea in the words following, Mangum, defendant, ads. .Flowers, plaintiff. And the said defendant Samuel Mangum, by Archibald Thweatt, his attorney, comes and defends the force and injury, when, &c. and, as to the coming by force and arms, saith that he is in no manner or sort guilty thereof. And of this he putteth himself upon the country, and the plaintiff doth the like. And, as to the residue of the said trespass in the declaration charged, the said defendant saith, that the said close, and also the place in which the said trespass is supposed to have been committed, were the proper soil and freehold of him the said defendant, by reason whereof he the said defendant, at the time when the said trespass is charged to have been committed, broke the said close, as his own close, soil and freehold, &c. as it was lawful for him to do, and this he is ready to verify,” &c. To this plea no replication appears to have been filed.
    After a verdict for the plaintiff “upon the issue joined,” a new trial was granted, and leave to amend the ^declaration. An amended declaration was filed, not varying the assignment of the trespass, but charging it with a continuando, and no change in the pleas took place. Another verdict was found for the plaintiff, after motions, on the part of the defendant, to the court to instruct the jury on several points arising upon the evidence; and a bill of exceptions was signed and sealed. Judgment was entered according to the verdict, and affirmed by the district court, from which the defendant appealed to this court.
    The cause was argued, at considerable length, by George Keith Taylor, for the appellant, and Hay, for the appellee,
    upon several points; but the court’s opinion was given as to one only, to wit, that issue ought to have been joined upon the second plea.
    Hay was inclined to think there were not, in fact, two pleas, but one only. The defendants filed their plea jointly of not guilty as to part, and justification as to the residue. This is one plea only, according to all the precedents ; because every plea must go to the whole declaration. If so, it follows that this is a mere “misjoin-ing” of issue, which is cured by the act of jeofails. But, if there were two pleas, and an omission to take issue on the second, that omission was not fatal in this case, because, under th.e plea of not guilty, the defendant’s title to the land might have been given in evidence. Both pleas were, therefore, substantially the same; and the second plea was bad, amounting to no more than the general issue:  the court, on motion, would have set it aside, and ordered the general issue to be entered;  but for this there was no necessity; the general issue being already entered. The defendant erred in filing such a plea. Is our judgment, then, to be arrested ,on the ground that he committed an error, which we failed to notice? In Hammett v. Bullitt’s executors, *1 Call, 567, it was determined that a defendant shall not be received to object to such errors in pleadings as are for his benefit: a judgment, therefore, ought not to be reversed because the plaintiff failed to take issue upon an immaterial plea.
    
    Besides, the second plea may be considered as waived by the defendant. When the plaintiff had leave to amend his declaration, the defendant had a right to plead de novo; but he did not. The trial, then, must be regarded as- brought on by consent of parties; and since it was a trial “of the issue,” it must have been of the issue joined upon the first plea; no-other issue being in the cause. The second plea was waived, of course, by plain implication.
    In Brown v. Belsches,' 1 Wash. 9, after a reference to arbitrators, a trial was had in court, without discharging the’ order of reference; yet the verdict and judgment were not set aside; it being inferred that the trial was by consent. In Barnett & Woolfolk v. Watson & Urquhart, 1 Wash. 379, Barnett’s appearance, and desiring to be made a defendant with Woolfolk, was considered as implying a consent to be united with him in his plea; especially, since he proceeded to the trial, and defended the suit. So, in Murdock and others v. Herndon’s Executors, 4 H. & M. 200, where the suit would have abated by the deaths of the plaintiffs, and the defendants might have pleaded de novo, but omitted to do so, and went to trial, they were precluded from making the objection after verdict: in that case, it is true, there was an express admission that Murdock and others were the surviving partners; but this, together with the defendants’ going to trial, was considered as implying a consent that the suit might be prosecuted in their names.
    *George K. Taylor, contra.
    There certainly were two pleas in this case; 1st. The general issue as to both the defendants; and, 2d. A special plea on behalf of Samuel Mangum only. The clerk, indeed, has, inaccurately and inconsistently, after stating that “The defendants pleaded not guilty,” proceeded to state that they filed their plea, which, upon inspection, appears to be a separate plea of one of them; and should be so considered, upon the authority of Chinn v. Heale, 1 Munf. 63, notwithstanding the mistake of the clerk.
    This is not a misjoining of issue, but a total failure to join issue upon the second plea. If there be any issue as to that plea, it is upon the formal part only; while, as to the real gist of the defence, no issue is joined. Even if the similiter had been put at the end, instead of in the middle, it would not have been sufficient; for it is a rule that, when the defendant, in his own right, claims any interest in the land in dispute, a general replication is bad. 
    
    No waiver of the second plea can be inferred in this case. The failure to plead de novo rather showed a willingness to abide by the pleadings already filed; and this, because, the amendment to the declaration not having varied the case in substance, a change of the pleas was in fact unnecessary. In the cases cited from 1 Wash. 379, and 2,H. & M. 200, there were express agreements, or admissions, from which assent was properly inferred; but there is no such agreement or admission here. To prevent surprise, it was the duty of the court to direct the cause to be sent to the rules. This, indeed, might have been dispensed with by express consent of parties, or by terms imposed upon the defendant in granting him the new trial; but nothing of this appears in the case.
    
      
       2 Chitty, 519; 6 Bac. (Gwill. edit.) 015.
    
    
      
       Dodd v. Kyffin, 7 T. R. 354; Argent v. Durrant, 8 T. R. 404: 12 Viner, 107, quoted and recognised by this court in the MS. case of Ballard v. Leavell.
    
    
      
       1 Chitty, 498; Hobart, 127.
    
    
      
       Cosby v. Hite, 1 Wash. 365.
    
    
      
       Lawes on Pleading, 151.
    
   Thursday, April 25th. The president delivered the opinion of the court that both judgments be reversed, *on the ground “That the county court judgment was erroneous; there being no issue joined upon the plea of justification in the proceedings mentioned.” Cause remanded for proceedings to be had upon that plea.  