Wilson’s Red Book, 8[*]
Court of Common Pleas of Delaware, Sussex County.
November, 1793.
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Defendant’s counsel, not prepared for trial, were about to deliver certiorari, but plaintiff’s counsel occupied the court with a motion for the entering of the words “replications and issues” (in order to foreclose a certiorari by force of the Act of Assembly, January 29, 1791 [2 Del. Laws 1013], 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 are often tried thereon and that the words “replications and issues” were not necessary. But the court said, that non 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, defendant’s counsel tendered the certiorari and insisted that the issues appeared from the docket [not] to have been made up within six weeks after appearance; that the records could not lie; that although the entries made within the term are under the discretion of the court during the term, yet this appeared to have been entered long since. But the court directed the clerk to erase the interlineation and enter it properly.
Defendant’s counsel then objected that the replication should be drawn at large and on stamped paper, by section 38 of the 27th chapter [2 Del. Laws 1123], and by section 1 and 6 of the 43rd chapter of the new laws.[1]
But the CHIEF JUSTICE
said the opinion of the Court was that neither was necessary in this case, but in all future causes, 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 the 38th section of chapter 27.
He then directed the jury to be called, but two being not within call, though fourteen of them in town, he continued the cause and discharged the jury pro defectu.
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