1 Va. 363
Decided October 15, 1794
Court of Appeals of Virginia · decided 1794-10-15
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.
Decided 1794-10-15
¶1delivered the opinion of the court.
¶2The 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.
¶3Judgment affirmed.