Immaterial Issue

An issue taken upon some collateral matter, the decision of which will not settle the question in dispute between the parties in action.

— For example, if, in an action of debt on bond, conditioned for the payment of ten dollars and fifty cents at a certain day, the defendant pleads the payment of ten dollars according to the form of the condition, and the plaintiff, instead of demurring, tenders issue upon the payment, it is manifest that, whether this issue be found for the plaintiff or the defendant, it will remain equally uncertain whether the plaintiff is entitled to maintain his action, or not;

— for, in an qction for the penalty of a bond, conditioned to pay a certain sum, the only material question is whether the exact sum were paid or not.

And the question of payment of a part is a question quite beside the legal merits; Hob. 113; Taunt 386; Cro. Jac, 686; 2 Wms. Saund. 319 6. A repleader will be ordered when an 1 Rolle, Abr. 86; Cro. Jac. 685. See Rb*