
    Brewer v. Tarpley.
    October Term, 1794.
    Verdict — Want of Similiter-Effect. — The want of a similiter shall not, after a trial, vitiate the ■ verdict.
    This was an appeal from the District Court of Northumberland, and the only question was, whether an issue was properly joined. It was an action on the case upon an assumpsit. Plea non-assumpsit, concluding as usual to the country, but no similiter appears in the record.
    Warden for the appellant contended, that the omission of the similiter was fatal, and could not be amended by an appellate court. He cited 1 Str. 641 in point.
    There being other cases in the court of a similar nature, tne counsel who were interested in he general question, argued the point.
    ^'Washington on the same side contended, that the case from Stra. cited by Mr. Warden, was expressly in point, and was unimpeached by any subsequent adjudication. — Those which come the nearest to it, are Sayer v. Pocock Cowp. Rep. 407. and Harvey v. Peak 3 Burr. 1793. — In the first, there was an et cetera which the cofirt construed to mean a similiter, since nothing else could be inferred from it. That at farthest it could be considered only as an issue misjoined, and (being in the same court) amendable by the statute of Jeofails, which however does not cure the want of an issue. In the other case, the plaintiff replied “and the defendant likewise” instead of the plaintiff. In that case it was no more than the misjoining of the issue. But no case can be produced where the total want of an issue has been aided by verdict.
    Warden; in the case of Saj’er v. Pocock, the amendment was made in the same court, and to prevent a writ of error.
    Campbell for the appellee.
    It would be mischievous as well as a disgrace to justice, if such captious objections were permitted after a trial. The issue is completely formed by an affirmation on the one side, and a negation on the other, and the adding of the similiter, is either done by the clerk, or by the party who tenders the issue. It is always understood that the one or the other will do it, and it would be a palpable fraud to permit the party to avail himself of a mistake, which it is understood and expected he will prevent. The case of Cooper v. Spencer 1 Str. 641 is not in point, for the replication did not tender an issue.
    Washington in reply. The replication in the case of Cooper and Spencer was de in-juria sua propria, &c. which was a complete negation of the plea of son assault demesne, and concludes td the country as the plea now under consideration does.
    
      
      PIeading and Practice — Want of Similiter — After Trial — Effect—in B. & O. R. R. Co. v. Faulkner, 4 W. Va. 184, it is said: “In respect to the plea of the general issue, it was long ago decided that a failure to add a similitei' was not error after trial. Brewer v. Tarpley, 1 Wash. 803. And it is expressly provided in the Code of Va. 1^60, ch. 181, § 8, that the want of a similiter shall not be error after verdict. So that as to the plea of nonasswmpsit, there was no error, in trying the case without a formal issue."
      Also in Wellsburg Bank v. Kimberlands, 16 W. Va. 572, it is said : “In the present case the verdict of the j ury.was responsive to all the issues, being a general verdict for the defendants. Isay responsive to all the issues, for though no formal issues were taken on the pleas of nonassumpsit and payment, yet, as both these pleas properly conclude to the contrary (see Douglass v. The Central Land "Co.. 12 W. Ya. 512), the plaintiff had a right without the formal addition-of a similiter to proceed to trial on them as though issues had been formally joined upon them. See Code W. Va., ch. 125, § 25, p. 603, and Douglass v. Central Laud Co., 12 W. Va. 506; Judge maxwell’s opinion in B. & O. R. R. Co. v. Faulkner, 4 W. Va. 180, and Brewer r, Tarpley, 1 Wash. 363. But it is otherwise if the plea concludes with a verification.” The principal case is also cited in Turberville v. Self, 4 Call 587; Digges v. Dunn, 1 Munf. 58. See Turberville v. Self, 2 Wash. 71.
    
   The PRESIDENT

delivered the opinion of the court.

The mere omission of a similiter in a plea importing the general issue, if it be a fault at all, is the misprision of the clerk, and therefore amendable. In this case, the parties considered it as joined; the jury were sworn to try the issue joined — the parties go to trial upon the merits, and the verdict is that the defendant did assume. After this, it is too late to object.

Judgment affirmed.  