
    Nadenbousch v. M’Rea.
    March, 1821.
    Plea ov Payment — General Replication. — General replication to the plea of payment, does not of itself constitute an issue.
    Appearance Bail-Rights of. — Appearance "bail becoming special bail, should be allowed to prove the similiter to a replication was added by the, clerk, without his consent: and in such case, the bail should be allowed to rejoin, demur, &c.
    M’Rea and Company brought debt in the Superior court of law for Berkley county, against Nadenbousch and Offeral, on a note for SS00. One Beeson became appearance bail, and defended the suit. The writ was returnable to June rules, when the dec-claration was filed; and Beeson prayed an imparlance. July rules, rule to plead. August, the defendants pleaded ‘payment;’ to which plea, there was a general replication; and Beeson joined issue. Beeson afterwards became special bail; but the pleadings not being set aside, the case went on against him as appearance bail. At the trial, he moved the court, to suffer him to amend the rules, by setting aside the proceedings subsequent to the replication ; and proved, that the issue was joined by the clerk without his consent, and against his wish; the court however refused the order moved for, and Beeson excepted to the opinion.
    *Tucker for the appellant.
    The English practice is, for the plaintiff to add the similiter to his replication, for the defendants; the defendant has then a certain number of days to strike it out, and demur; or to go to trial on the issue thus made up.() The law of Virginia differs from that of England, only in allowing a longer time for the defendant to make his election, it allows him one month.
    In this case the exercise of the right is very material, for had it been allowed, the appellant must have had judgment in his favor. The declaration would have been bad on demurrer, for it appears upon its face, that there are plaintiffs beside M’Rea, who are not named, a defect fatal on demurrer, () The replication is'also bad, for it states that the,plaintiff replied generally. The plea of payment also, concluded with a verification, which tendered no issue, and the similiter was improperly added.
    It is no answer to say the verdict cures the error, for it was wrong to take any verdict ; and a verdict improperly taken can cure nothing.
    Nicholas contra.
    The entry of special bail discharged the appearance bail from the record. And the special bail had no right to make the objection: for giving special bail does not set aside the office judgment against the principal. He also relied on the error being cured by the verdict.
    Tucker held that an office judgment against principal and bail, could be set aside by either, only by giving bail and pleading to issue, () And if the appearance *bail give special bail, and defend the suit, new pleadings must be made up by the defendant, () And so Beeson had a right to make the objection.
    
      
      Plea of Payment — General Replication. — To the point that a general replication to the plea of payment does not of itself constitute an issue, the principal case was cited in Wyatt v. Woodlief, 1 Leigh 475.
      Til Douglass v. Central Land Co., 12 W. Va. 509, it is said: "In Henderson y. Southall, 4 Call 372, the court were unanimously of opinion, that the idea of payment was responsive to the negative of nonpayment in the declaration, and should therefore conclude to the country. On the contrary, in the case of ymhribO'iseh v. M’/lm, (film. 328, the court held that a general replication to a plea of payment did not constitute an issue, and a similiter to such plea entered in the office against the plaintiif’s consent by the clerk ought therefore to be set aside. This decision is based on the idea that a plea of payment should conclude with a verification. In rendering it the court did not refer to the unanimous decision of the court in 4 Call, which they indirectly reversed, probably because 4 Call had not been then published. So that these two decisions may each be regarded as original decisions entirely independent of each other. And we must determine which of them lays down the law correctly." In this case <])ouglass v. Central Land Co.) it vtas held that the plea oi payment must in every case whether the action be assumpsit, debt or covenant, conclude to the country. This seems the settled law of West Virginia. See Bank v. Kimberlands, 16 W. Va. 555, 572: Kinsley v. Monongalia County, 31 W. Va. 464. 7 S. JB. Rep. 445.
    
    
      
      (a) l Chit. PI. 628.
    
    
      
      Cb) 1 Chit. PL 29, 255; 4 Munf. 430; 2 Munf. 349 ; 2 Term. Rep. 282.
    
    
      
      ) 1 Munf. 284; 2 Call 64.
    
    
      
      a) Dunlop v. La Porte, 1 H. & M. 32.
    
   The Court

not concurring in opinion with the Judge of the Superior court, that a general replication to a plea of payment constituted an issue, and left no room for further proceedings, unless thereafter the parties considered it as an issue, and submitted the case to a Jury; is of opinion, that the said Superior court should have permitted the appellant Beeson to prove that the similiter entered in the office, was entered without his authority, and against his consent; and should also, in that case, have corrected the proceedings in the office, by giving him a rule to rejoin, or take other measures in relation to the appellees’ replication. The judgment is therefore reversed with costs, and the cause is to be remanded to the rules of the said Superior court, to be proceeded in from the replication, pursuant to the principles now declared.  