Read’s Notebook, 9[*]
Court of Common Pleas of Delaware.
November, 1793.
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Ejectment. Non culpa. Defendant’s counsel not being prepared for trial, were about to deliver a certiorari, but the plaintiff’s counsel occupied the court with a motion for the entering the words “replications and issues” in order to foreclose certiorari by force of the words of the Act of Assembly January 29, 1791 [2 Del. Cas. Laws 1012], which prevents a removal unles certiorari delivered before issue joined, except it was joined within six weeks after appearance.
The certiorari being tendered, the Court refused a consideration of it until they determined the first motion, which being opposed on the ground that non culpa was the general issue, that causes were often tried thereon, and that the words “replications and issues” were unnecessary. But the Court said tha not culpa, non est factum, non assumpsit, etc., were none of them issues, that a similiter must always be added, and granted the motion, which excluded the certiorari.
Mr. Vining having entered the words “replications and issues,” by interlineation, after the words “non culpa” on the docket, the defendant’s counsel tendered the certiorari that the issue appeared from the docket to have been made upon within six weeks after appearance, that the records could not lie, that although the entries made within the term are under the direction of the court during the term, yet this appeared to have been entered long since.
But the Court directed the clerks to erase the interlineation and enter it properly.
The defendant’s counsel then objected that the replication should be drawn at large and on stamped paper by section 38 of c. 27 [2 Del. Cas. Laws 1123], and by sections 1 and 6 of c. 43, 2 Del. Cas. Laws.[1]
But the CHIEF JUSTICE BASSETT, said the opinion of the Court was necessary in the case, but in all future causes brought to this term and causes where only the declaration has been filed or is yet to be filed, the pleadings must be drawn at full length and on stamped paper, and in those cases the clerk is bound by c. 27, section 38, aforesaid. He then directed the jury to be called, but two not being within call, though fourteen of them in town (Georgetown) he continued the cause and discharged the jury pro defectu.
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