Sec. 309 RETROSPECTIVE MOTIONS 579

an Administrator, and alleged a Promise by the decedent to pay money, and B, the de- fendant, Denied that he so Promised, the Plea neither Admits nor Denies the Promise of the decedent. The fact that B set up, to wit, that he had made No Promise, wheth- er true or untrue, was irrelevant, and not responsive to A’s Allegation that the de- cedent had promised to pay the money. To this Plea, the plaintiff should Demur, but if he should mistakenly Traverse it, the Is- sue created would be an immaterial one, and a Verdict would not, therefore, be decisive as to the merits of the case. Accordingly, the Court should Award a Repleader to es- tablish an Issue of Fact upon which a Judg- ment on the merits might be rendered for one Party or the other.62

The famous case of Staple v. Heydon 63 af- fords another example of a situation which called for a Repleader. A brought Trespass against B, alleging that B had wrongfully entered upon a certain wharf in the Thames river. This wharf was held by A under a lease from C and adjoined a lot on the bank which was held by B under a lease from the same C. B Pleaded that he had a right of way over the wharf, derived from C; but the Plea was Defective in Form because in tracing title it showed that C himself was a lessee, and it did not show from what seisin in fee his term was derived. For this reason his Plea was held Demurrable in Form al- though it was Valid in Substance. In ordei- to bolster his Defence, B in his Plea further alleged that he had no other way of egress from his lot to the river than by crossing the wharf, which Plea of a right of way by necessity was not supported by the Facts stated in relation to his title. To this part of the Plea A Replied that B had “another convenienter way to the river.” The Issue thus taken upon the Replication of A was

clearly Immaterial, and upon a Verdict for the defendant at the Trial, the Court held that the case was one in which a Repleader was proper. So, where, as in the instant case, a defendant interposes a Defense which in itself is valid, but then adds an Allega- tion of an Immaterial Fact, and the plain- tiff mistakenly takes Issue upon that Fact, after which a Verdict is rendered no Mate- rial Issue arises upon which the Court can determine the case upon its merits, and the Verdict, whether for One Party or the Other, fails to guide the Court as to who is entitled to Judgment.

In the example above, the Plea does not Confess the plaintiff’s Cause of Action by admitting his title, but Denies his right, although placing the Defense upon an un- tenable ground. As the defendant has not admitted a prima facie right in the plaintiff, which he has not sufficiently avoided, but on the contrary has disputed the plaintiff’s right, but for reasons which are invalid, the plain- tiff is not in a position to demand a Judg- ment Notwithstanding the Verdict. The Ver- dict upon the Issue as to whether the defend- ant had a convenient egress from his lot to the river other than by crossing the wharf, was not determinative of the Issue as to whether the defendant had trespassed upon the plaintiff’s wharf. It follows, therefore, that the distinction between a case for Judg- ment Non Obstante Veredicto and one for Repleader turns on whether or not the de- fendant has by his Plea Confessed the plain- tiff’s Cause of Action.64 As Keigwin ob- serves: “If the Plea admits the Tort or the Breach of Contract alleged and undertakes to Justify or Discharge it by matter not sufficient for that purpose, a Verdict for the defendant merely proves the insufficient Avoidance and leaves the Admission stifi ef- fective. But, if the Plea contains No Con- fession and only some Immaterial Matter

1010 (1825).