The case

gested that the defect arose in the issue itself.
of Combe v. Pitt (a), where a new trial was moved for on
the ground that the plea roll contained nothing but the
declaration and the plea of nil debet, when it was con-
tended that a plea in abatement, before pleaded, ought to
have been entered, the Court held, that, at all events, the
irregularity was cured by the defendant's accepting the
issue. A variety of authorities to the same effect were
collected in the note to Doe v. Cotterell (b). In Clark v.
Nicholson (c), it was decided that if a replication conclude
to the country, with an " &c.," and no similiter be added,
the Judge will try the cause, as the "&c." is sufficient.
And, in Stockdale v. Chapman (d), the Court of King's
Bench refused to grant a new trial, moved for by the de-
fendant, on the ground that no similiter had been added
to a replication concluding to the country, and that the
absence of a similiter was not supplied by an " &c.," where
no objection was made to the issue until after verdict.

In the first place, then, the omission was an irregularity, of which advantage should have been taken on the delivery of the issue. Secondly, no authority could be found in which the Court had arrested the judgment where an "&c." had been introduced; as those words must be considered as including a similiter. For these reasons, the present rule ought to be discharged.

COLERIDGE, J.-I do not see any
I do not see any defect in any record.
Is there any record in which this objection appears? How
can you get at this objection, except on affidavit?

Byles.-The original rule for a new trial was obtained on affidavits.

COLERIDGE, J.-This motion must be made on the nisi prius record, as there is no other in existence.

(a) 3 Burr. 1682.

(b, 1 Chit. Rep. 277.

(c) 6 C. & P. 712.

(d) 6 N. & M. 711.

1837.

BROOK

V.

FINCH.

1837.

BROOK

v.

FINCH.

Byles.-There is an incipitur of a record in existence, which is to be made up from the paper issue. That is the only document from which the record can be made up. That record, so made up, is, in contemplation of law, now before the Court.

Kelly referred to 15 Reg. Gen. H. T. 4 Will. 4, (pleading rules) (a), the words of which were," the entry of proceedings on the record for trial, or on the judgment roll, (according to the nature of the case), shall be taken to be, and shall be in fact, the first entry of the proceedings in the cause, or of any part thereof, upon record; and no fee shall be payable in respect of any prior entry made, or supposed to be made, on any roll or record whatever." Reeder v. Bloom (b), was an authority to the same effect. Mr. Tidd (c), laid down the rule that "the parties cannot move in arrest of judgment, for any thing that is aided after verdict at common law; or amendable at common law, or by the statutes of amendments; or cured, as matter of form, by the statutes of jeofails."

Byles. All the cases cited, as well as 15 Reg. Gen. H. T. 4 Will. 4, are consistent with the validity of this objection. First, the objection would have been good before the new rules. This is not a case where the parties are actually at issue, and the nisi prius record only is defective; but it is a case where no issue was ever joined at all. The plaintiff did not add the similiter to his replication, as he might have done; nor did the defendant ever rejoin the similiter, nor did the plaintiffs add the similiter on making up the issue. The defendants might have demurred, or confessed the action, or suffered judgment by default. The parties, therefore, went to trial without any issue joined, the witnesses could not be indicted for perjury,

(a) Ante, Vol. 2, p. 320.

(c) 1 Prac. 919, Ed. 9.

(b) 2 Bing. 384.

and the trial was a mis-trial. The similiter is not mere
matter of form, but is as much a rejoinder as any other
answer to the replication. Judgment of non-pros may be
signed for want of it. Hollis v. Buckingham (a). Judg-
ment, as in case of a nonsuit, cannot be signed if it be
wanting, nor even if it be doubtful whether it be wanting
or no. Gilmore v. Melton (b), Brown v. Kennedy (c),
Brook v. Lloyd (d), Martin v. Martin (e). The statutes of
jeofails do not cure the defect. The 32 Hen. 8, c. 30,
which is the only statute curing irregularity in the issue,
cures mis-joinder only, not non-joinder. Com. Dig. Pleader
R. 12. In Cowper v. Spencer (ƒ), it was held that the
statute did not cure the absence of a similiter. Nor does
the statute of amendments, 8 Hen. 6, c. 15, help, for that
only applies to misprision of the clerk, not of the parties.
Besides, the issue, which is to be considered as a copy of
the plea roll, cannot be amended by the nisi prius re-
cord (g). This is not an irregularity which may be waived,
for an irregularity is something dehors the record. Gar-
ratt v. Hooper (h), Roberts v. Spurr (i), Hanson v. Shackel-
ton, (k), Nunn v. Curtis (1). And if it had been an irre-
gularity, it was not waived, for the defendant did not know
of it till notice of trial had been given, and he came at the
first moment to the Court. Crow v. Edwards (m), shews
that even consent of parties will not cure a mis-trial. The
proper mode of taking advantage of this defect is, by mo-
tion in arrest of judgment. The roll before the Court, on
which the judgment is arrested, is erroneous.
The judg-
ment was arrested in Cowper v. Spencer, and that was the
form of the application; and the learned Judge who dis-

1837.

BROOK

U.

FINCH.

1837.

BROOK

บ.

FINCH.

charged the former rule in this case, appears to have considered that the defendant should move in arrest of judgment. All the cases cited on the other side, except two, Cowper v. Spencer, and Griffith v. Crockford, are cases where the parties had, so far as appears, actually joined issue; but the similiter was merely omitted in the nisi prius record, which is but a transcript. In Cowper v. Spencer, however, the defect was in the paper issue, and there, judgment was arrested. So in Griffith v. Crockford (a), the similiter was wanting in the issue; but though there was an " &c.," and the nisi prius record contained the similiter, and the party who afterwards sought to set aside the verdict attended at the trial, yet the Court in that case granted a new trial for want of the similiter in the issue. In the only two cases, therefore, in which this objection to the want of a similiter, in an issue made up by the parties, has hitherto been taken, it has prevailed. Although it does not appear in the statement of the facts in Sayer v. Pocock, that the paper book was defective, yet it must be admitted that, on reading the whole case, that seems to be so. But the paper book at that time was made up by the officer of the Court, and the omission of the similiter was his misprision, and on that ground, Lord Mansfield held that the " &c." might afford ground to amend on a cross motion. Sayer v. Pocock was cited in Griffith v. Crockford. Before the new rule, therefore, it seems, that both on principle and authority the absence of a similiter in the issue itself would be a fatal objection, and that the " &c." would not supply it, though it may have had that effect on the nisi prius record, and though the Court would amend a paper book made up by the officers of the Court on a proper motion for that purpose. Secondly, the new rules have no effect in removing this objection. It is suggested that as 15 Reg. Gen. H. T. 4 Will. 4, directs that the entry on the record for

(a) Better reported in 6 Moore, 51.

trial, or on the judgment roll, shall be taken to be, and shall be, in fact, the first entry of the proceedings in the cause upon record, therefore, the entry on the nisi prius record is the first and only entry of record in the case, and that as the nisi prius record is here correct, there is, since the new rules, nothing whereon to ground this motion. But that depends on the meaning of the expression ' entry on the record for trial.' It is submitted that this expression refers to the entry or incipitur on the plea roll, at the time of passing the record for trial, and not to any entry on the nisi prius record. When the record is passed and sealed at the nisi prius office, an incipitur was always, and is still, made on a roll which is kept among the records of the courts, and on which (if need be) the proceedings are afterwards continued at length and preserved in the treasury of the court. It is called the plea-roll till judgment, and the judgment-roll after. That this is what it means seems clear from the mention of the judgment-roll in the same clause of the rule. And the rule, in this sense, is very reasonable and necessary. For before this rule there were, or were taken to be, prior entries on the process roll, the warrant of attorney roll, the imparlance roll, and the recognizance roll, all of which this rule abolishes, leaving only that which, at one period of the suit, is called the plea roll, at another the judgment roll. If the meaning of the rule is, that the entry on the nisi prius record shall be the only entry, how is that an incipitur on the plea roll, the entry of the issue, as it is called, is still required by the practice of all the Courts, except where by express rule it is rendered unnecessary? And the entry of which the rule speaks is an entry "upon record," whereas what is vulgarly called the nisi prius record is not a record at all, but a mere transcript from the real record to send the issue into the county for the judges to try (a). Besides,

(a) Gilbert's C. P. 145, 146.

1837.

BROOK

v.

FINCH.