3 Stew. 283 | Ala. | 1831
It is a necessary inquiry, whether the irregularity of the issue, had a tendency to prejudice the defendant, or preclude a full investigation of the merits. It may be safely inferred, as nothing is shewn to the contrary, that the parties went to trial without any objection on the part of the defendant below, for the want of replication. If his second plea was a valid one in bar of the action, he would have been entitled to á
The principle involved in this case, may be assimilated to that recognised by this Court, in reference to pleas in abatement, or demurrers, where the record shews no regular disposition of them, that a trial has been had on a general issue, embracing the true merits of the controversy. In such cases, the rules of decision are, that the imperfect issues are presumed to have been waived by the parties, or treated as nullities.
Judgment affirmed.
1 Chit. Pl. 474.