
    *Stevens v. Taliaferro, Administrator of Thornton, Deceased.
    April Term, 1793.
    Pleading and Practice — Replication Bad — Repleader— Case at Bar. — Debt on a bond against the executors of one obligor. Plea, that .1, S. was jointly bound with the testator in the bond, and survived him. Replication, “that it is not expressed in the bond that the said .J.S.was jointly bound with the testator, and. if it were, by the Act of 1786, entitled an Act, &c. it is declared, that the representatives of one j ointly bound with anoth er.may be sued as well as the surviving obligor, anil insists, therefore, that the action does not survive. &c , and this the defendant is ready to verify,” &c. The record states, “and thereupon issue was joined by the parties.” The plea is good, and the replication faulty, and a repieader from the plea awarded.
    Same — No Issue Joined — EfiectJ- The judgment upon the verdict rendered in this case for the plaintiff, is also erroneous, there being no issue j oined.
    This was an appeal, from a judgment of the District Court of Fredericksburg, reversing a judgment of an inferior court, and awarding a repleader from the plea.
    It was an action of debt, brought by the appellant, against the appellee, upon a bond given by the testator, and a certain John Pattie. The defendant, without taking oyer, plead ih bar, “that the said John Thornton, was jointly bound with a certain John Pattie, in the said identical writing obligatory in the declaration mentioned, and that the said John Pattie, survived the said John Thornton, and this he is ready to verify wherefore, &c. ” To this plea, the plaintiff replied, that he ought not to be precluded &c. because he says, in the said writing obligatory, it is not expressed, that the said John Thornton was jointly bound with the said John Pattie, as is alledged in the plea, and if they were jointly bound, that by an 'act of Assembly passed in the year 1786, “intituled, an act concerning partitions, and joint rights and obligations; it is therein declared, that the representative of one, jointly bound with another, may be sued, as well as the surviving obligor himself; and he insists therefore, that the said action does not survive against the said Pattie, but is maintainable against the said -John, &c. and this he is ready to verify- — -wherefore, &c. ” the record then proceeds thus, “and thereupon an issue was joined by the parties.”
    Verdict and judgment was rendered for the plaintiff, in the County Court, and an appeal prayed to the District Court, where that judgment was reversed as above stated.
    Marshall for the appellant.
    The plea in this case, is faulty in two respects, and therefore, could oppose no legal bar to the plaintiff’s recovery. 1st, It does not state, that the obligors were not severally bound, which they might have been, altho’ they were also jointly bound. 2dly, It does not set forth, at what time John Thornton died; for if that event happened, after the law mentioned in the replication took effect, which was in 1787; then I conceive, that this case would come within the operation of that law, altho’ the bond was executed long before. The same inconvenience, *which is generally, and properly chargeable upon retrospective construction's of laws, would not exist in this case; for the two obligors, if they were both alive when that law took effect, stood upon equal ground, as to the chance of survivorship. If there had been a demurrer in this case, (let it have come from which ever side it might,) there could have been little doubt, but that judgment must have been given for the plaintiff; because the first fault in pleading being committed by the defendant, the demurrer would have reached it, however defective the replication might be.
    Tho’ there may be an objection to the informality in joining the issue, yet it is cured by the statute of Jeofails, and the verdict will not on that account be set aside.
    The court informed Washington, who was about to argue the cause for the appellee, that there was no necessity to say any thing,- as there was no difficulty in the case.
    
      
      Pleading and Practice — No Issue Joined — Effect.— in State v. Douglass, 20 W. Va. 777, it is said : “It is well settled, that if a verdict has been rendered without any issue being joined, it is a mere nullity, and no judgment can properly be rendered upon it. whether it be a civil or a criminal action. See Stevens v. Taliaferro, 1 Wash. 155; Grymes v. Pendleton, 4 Call 130; Taylors, etc., v. Huston. 2 H. & M. 161; Kerr v. Dixon, 2 Call 379; Wilkinson v. Bennett, 3 Munf. 316; Sydnor v. Burke, 4 Rand. 161; McMillion v. Dobbins. 9 Heigh 432; Rowans v. Givens, 10 Gratt. 250; Baltimore & O. R. Co. v. Gettle, 8 W. Va. 370; Baltimore & O. R. Co. v. Faulkner, 4 W. Va. 180; Gallatin v. Haywood, 4 W. Va. 1; Baltimore & O. R. Co. v. Christie, 5 W. Va. 325; State v. Conkle, alias Swank, 16 W. Va. 736.”
      In Henry v. Ohio River R. Co., 40 W. Va. 238, 21 S. 13. Rep. 865. it is said : “There is no statement in this record either of a replication or that issue was joined on the idea. Some cases hold that even where there is a statement that issue is joined, though there is none that the plea or other pleading was filed, there is still no issue, and the defect is fatal. Wilkinson v. Bennett. 3 Munf. 314; Stevens v. Taliaferro, 1 Wash. (Va.) 155; Hockridge v. Carlisle, 6 Rand. 20. Others hold, not that there is an issue in such case, but that it is merely misjoinder, and cured by statute of jeofails after verdict. Moore v. Mauro, 4 Rand. 488; Huffman v. Alderson, 9 W. Va. 616; Railroad Co. v. Daniel. 20 Gratt. 344. There Is conflict in these cases. See 1 Bart. Law Frac. 482.”
      See, citing the principal case on this question, Hite v. Wilson, 2 H. & M. 285, 288; footnote to Rowans v. Givens, 10 Gratt. 250; Southside R. Co. v. Daniel, 20 Gratt. 360, and note; Preston v. Salem Imp. Co., 91 Va. 585, 22 S. 13. Rep. 486; Ruffner v. Hill, 21 W. Va. 158; Brown v. Cunningham, 23 W. Va. 111; Hickman v. B. & O. R. Co., 30 W. Va. 305, 4 S. 33. Rep. 659; Simmons v. Trumbo, 9 W. Va. 363. See also, foot-note to McMillion v. Dobbins, 9 Leigh 422; monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
   The PRESIDENT.

The plea is certainly sufficient, and if the act of 1786, were material in the case, the plaintiff might have set forth the time of Thornton’s death in his replication, by way of avoiding the bar, relied upon by the defendant. What would have been the opinion of the court, upon the operation of that act, if the time of the death had been stated in the replication, need not be mentioned. The replication is certainly faulty, and containing the first slip, the District Court did right in reversing the judgment, and in setting aside the pleadings subsequent to the plea.

We are also of opinion that the judgment of the County Court is erroneous, there being no issue joined in the cause.

Judgment of the District Court affirmed.  