
    Taylors and Others, Devisees of Waits, v. Huston.
    Monday, March 21, 1808.
    Pleading — Writ of Right — No issue Joined. — In a writ of right, all the pleadings must be in writing and at full length, and therefore, in this case, the defendant having pntin as a plea the words “usual plea,’’ it was decided that no issue was joined and, after verdict for the defendant, a repleader was awarded.
    This was an appeal from a judgment of the District Court of Staunton, affirming a judgment of the County Court of Rocking-ham.
    The appellants brought a writ of right in the County Court, and filed their count in the form prescribed by law. After a rule to plead, which was continued from November, 1795, to May, 1796, there are the following entries: May, “Usual plea and time to reply;” July, “Joinder.”
    The parties went to trial without ány further pleadings; and there having been a verdict and judgment for the defendant, the plaintiffs obtained a writ of supersedeas from one of the Judges of the General Court, by virtue of which the record was carried up to the District Court of Staunton, where the judgment of the County Court was affirmed. The plaintiffs appealed to this Court.
    Hay, for the appellants.
    There is no issue joined in the cause. The act of 1786 prescribes the form of the writ, count, plea, and replication in writs of right. The parties must pursue that mode and no other. In this case the clerk has only said the “usual plea;” but does not say what that plea was.
    Call, for the appellee.
    Mr. Hay is right in saying, that if the defendant counts according to the act, the defendant can plead no other plea than that prescribed by 162 it. He *has no election. If in in-debitatus assumpsit, a plea of the
    “General issue” be put in, it is equivalent to “Non assumpsit.” So, in a writ of right, if the defendant plead the “usual plea,” it must necessarily follow, that it is the plea prescribed by the act; for he could put in no other.
    Hay, in reply.
    Admitting the doctrine contended for by Mr. Call to be correct, it is manifest that no issue has been made up in this case; for the act says the demand-ant shall reply in the form of the replication prescribed by it. Here there was no replication, nor even an apology for one.
    In Brewer v. Tarpley, it was held that the omission of a similiter in a plea importing the general issue was a mere misprision of the clerk, (if it were a fault at all,) and therefore amendable. But, in Stevens v. Taliaferro, the judgment was reversed for want of an issue, though it was said, “thereupon an issue was joined by the parties.” In that case, too, there was a regular special plea, in bar, in the first instance, and the clerk afterwards said in the record that an issue was joined.
    In Kerr v. Dixon, the defendant to a declaration in trespass put in as a plea the word “Justification” only; and it was held that no issue was joined.
    In the present case, the clerk, instead of putting in the usual plea in the terms of the plea itself, has merely put in the words “Usual plea,” which is no plea at all.
    Call. There is a distinction between the duties of a County Court and a. District Court clerk. The former only takes short minutes, and it is his duty afterwards to extend them in proper form; whereas, in the District Courts, the records are drawn up at full length, and signed bj' the presiding Judge. Even in the District Courts, the records usually say, to a plea of payment to an action of debt, the plaintiff replied generally.
    In Stevens v. Taliaferro, the plea was complicated, and it was necessary to specify on what point the issue was ^joined, But in this case there was but one point on which it could be joined; and the usual plea could be but one.
    
      
       Rev. Corl e, vol. 1, c. 27, p. 33.
    
    
      
       1 Wash. 863.
    
    
      
       Ibid. 155.
    
    
      
       2 Gall, 379.
    
   Monday, March 28. The Judges delivered their opinions.

JUDGE TUCKER.

The appellants brought a writ of right in the County Court, and filed their count. After several continuances for a plea, there is this entry, “Usual plea, and time to reply.” to which, at another, there is this entry, “Joinder.” The parties went to trial, and there was a verdict and judgment for the defendant.

This judgment was affirmed by the District Court.

By the County Court law, in all cases where the title or bounds of land is drawn in question, the pleadings must be all in writing, and are to be entered at large with the judgment thereupon, in particular books kept for that purpose. The act for reforming proceedings in writs of right, affords the defendant a proper form of which he may avail himself if he thinks proper. If he neglects so to do, and especially if he offer no plea in writing at all, he shall not have any advantage of his own neglect. Where there is no plea in writing in suits concerning lands, there can be no issue joined: the one is a preliminary to the other.

In writs of right, which are conclusive, whichever way they may be determined, it appears to me to be absolutely necessary to hold the parties to regular pleadings. Otherwise, instead of deciding mere right, they may be the means of establishing extensive wrong. I therefore think the judgment must be reversed, and all the proceedings subsequent to the count set aside, and a repleader awarded.

JUDGES ROANE and EEEMING being of opinion that the judgments ought to be reversed, and a repleader awarded, the following was entered as the opinion of the whole Court, (absent JUDGE EYONS.) ^Judgments of County and District Courts reversed, and it is ordered,

“that the pleadings and all other proceedings in the said County Court subsequent to the count be set aside, and that the parties do proceed and plead anew.” 
      
       Ed. 1794, c. 67, sect. 34.
     
      
       Ibid. c. 27.
     