Huling v. The Florida Savings Bank, &c.—Opinion of Court. cides it in a few words on the act of 1828, as contained in Thompson's Digest, now found in McClellan's Digest, 453, Section 2, under the head of Criminal Proceedings. We submit to the court that the words "misjoinder of issue" efer to such a case as when there is a joinder of issue or attempted joinder of issue actually filed, but not a proper joinder of issue under the rules of pleading, and does not apply to a case, as this when no joinder of issue whatever was filed. This, too, would appear from the preceding words in the statute, "mispleading." "insufficient pleading." referring, as we claim, to pleas in, but not sufficient or proper, but not to an entire failure to plead. Again, we submit to the court that the act known as Blount's Code, providing specially for a joinder of issue, McClellan's Digest, 823, Sec. 48, and p. 825, Sec. 51, was passed long subsequent to the statute under which the case in 8 Fla. referred to was decided. If the said statute is applicable to and governs this case, would it not be equally applicable tc, under its broad terms, the cases referred to by us in I Fla., 6 Fla. and 17 Fla., where judgments were reversed for failure of parties to file joinder of issue or other proper pleading. R. B. Archibald for Appellee. MR. JUSTICE WESTCOTT delivered the opinion of the court: The appellant says that judgment should have been arrested upon the ground that the amended declaration was not signed, and because the plaintiff failed to join issue upon the defendant's pleas. The first plea was the general issue that defendant "did not promise as alleged." The second, that he did not contract with plaintiff as alleged. This is but a repetition of the first plea, a denial of the promise or contract. Webster Huling v. The Florida Savings Bank, &c —Opinion of Court. vs. Tierman, 4 How., Miss., 355; Rule 74, Circuit Court Rules. The third plea is not responsive to any allegation in the declaration, and does not tender an issue. As to the omission of the signature of plaintiff or attorney to the amended declaration we find that an attorney's name is signed to the præcipe and to the original declaration. After demurrer an amended declaration was filed giving the title of the cause, and in the introductory part the name of the plaintiff "by its attorney," but the name of the attorney is not signed at the foot. Without calling attention to this omission the defendant pleaded generally. The name of the plaintiff's attorney appearing of record and signed to the original declaration, the words "by its attorney" may be taken as referring to the attorney of record. The defendant having pleaded must be held to have waived irregularities of this character. Was it necessary for the plaintiff to join issue by adding a similiter upon the pleas denying generally the contract or promise declared on; and the parties having gone to trial without the similiter, and tried the cause upon its merits as though it was fully at issue, was it error to refuse a motion in arrest of judgment or to refuse a new trial? "It was once held that the want of a similiter was not aided by or amendable after verdict, but in a subsequent case, where a similar mistake was made, the court, after trial of the issue, refused to arrest the judgment, and the similiter was allowed to be inserted after verdict upon three grounds-first, it was an omission of the clerk; secondly, it was implied in the '&c.' added to the last pleading; and thirdly, that by amending, the court only made that certain which the defendant understood to be so by his going down to trial." I Chitty on Pl., 16 Am. Ed., 626. Wright vs. Horton, 1 Starkie, 400, the K. B. held that the court would after verdict direct a similiter to be entered, In Huling v. The Florida Savings Bank, &c.—Opinion of Court. although the objection founded upon the want of it was taken at the trial. See also Reeder vs. Bloom, 2 Bing., 384; Stockdale vs. Chapman, 2 Ad. & E., 419. On writ of error in Siboni vs. Kirkman, 3 Mees. & Welsby, 46, the omission of a similiter was held to be amendable under the statute of amendments, even after final judgment, and after a writ of error had been brought and such omission assigned for error. The similiter is in strictness no part of the pleadings, since it neither affirms nor denies any fact in maintenance of the action or the defence, and merely expresses the acceptance of the issue tendered in referring the trial to the jury. Gould's Pleading, 291. The Supreme Court of Pennsylvania in Shaw vs. Redmond, 11 S. & Rawle, 27, 33, says that where the defendant has had the full benefit of his own pleas on the trial the want of a traverse is cured by the verdict; and cites a note by Sergeant Williams to Bennet vs. Holbeck, 2 Saund., 317, showing the progress of the courts in granting such amendments or overlooking such defects after verdict. The court refers to Cooper vs. Spencer, I Stra., 641, where it was decided that a verdict did not cure the want of a similiter; but in Sayer vs. Pocock, Cowp., 407, the want of it was aided after verdict. And Lord Mansfield said, "one is ashamed and grieved that such objections remain; they have nothing to do with the justice of the case, but only serve to entangle without being of the least aid in preventing irregularity." The same ruling was made in Whiting vs. Cochran, 9 Mass., 533. and endorsed in McLellan vs. Crofton, 6 Greenleaf, Me., 307, 327; Brazzel et al. vs. Usher Breese, Ill., 35; Laber vs. Cooper, 7 Wallace, 565; Coan vs. Whitmore, 12 Johns., 353. In Iowa, Couch vs. Barton, Morris' R., 354. the court holds that after verdict it is too late to raise an objection 23-19th Fla Huling v. The Florida Savings Bank, &c.—Opinion of Court. that pleas remain unreplied to, unless the defendant shows that he endeavored to obtain replications prior to the trial. This court in Burk vs. Clark, 8 Fla., 9, 13, refused to reverse a judgment for want of a similiter to a plea of not guilty in trover. On the other hand, counsel for appellant refer to Miller & Croom vs. Hoc, 1 Fla., 189, where the court finds by the record that there was no rejoinder to a replication to a plea of non-damnificatus, (the suit was on an attachment bond) that there was a demurrer to another plea not disposed of, and no joinder; and a verdict for a gross amount covering two causes of action in two several actions submitted by agreement at the same time when there should have been two verdicts. For these errors the judgment was reversed. The court holds that there was no issue properly made up for submission to the jury, indeed that there was no issue either of fact or of law. The court does not cite authorities or present argument upon the precise question we are now considering. There was a replication to the plea of non-dam., but whether it was general or special the report does not show. The court in McKinnon vs. McCollum, 6 Fla., 376, held that it was error to submit an issue upon one plea to the jury while other pleas remain undisposed of, when it appears that they were not abandoned. The action was trover, and defendant pleaded the general issue and two special pleas concluding with a verification, neither of which two were replied to. The court says: "The first plea (the general issue) concluded to the country and might, with propriety, have been submitted to the jury had the other two pleas been disposed of, but thus to submit it while these other pleas remained undisposed of was an error for which the cause should be sent back, as it clearly appears that they were not abandoned.” Huling v. The Florida Savings Bank, &c.—Opinion of Court. It The case of Benbow vs. Marquis, 17 Fla., 441, it is strenuously insisted, establishes the doctrine that the want of a similiter in this case is fatal to this judgment. We do not so understand it. That case was trover for logs. The pleas were, the general issue not guilty, 2, denial of property in plaintiffs; 3. denial of plaintiff's right of possession; 4, that the logs were the property of the State, and that defendant was a timber agent and seized the logs as the property of the State. The second, third and fourth pleas concluded with a verification, and there was no replication. It was evident that these pleas were not abandoned. was held that there being no issue joined upon the second, third and fourth pleas, the judgment in favor of plaintiffs must be reversed, the testimony showing that the defendant was entitled to the benefit of these pleas. The case was treated as at issue upon the plea of not guilty without a similiter, as was that of McKinnon vs. McCollum, supra, which is quoted in the opinion. No case decided in this State can be found in which a judgment has been reversed because of the mere omission of a similiter to a plea or replication, except, perhaps, the case of Miller vs. Hoc, above referred to. The case of Earle vs. Hall, 22 Pick., 102, is cited as containing a full discussion of this question and as establishing the rule that a judgment must be reversed if the plea of the general issue is not followed by a joinder by the plaintiff. We do not so understand that case. The court say the law does not appear to be fully settled in England. But, they say, "whether such an omission may be amended or not, is immaterial in this case. It is clear that no issue was joined by the plaintiff on the several pleas, and his counsel refused to join them." The court below had by rule required the plaintiff to join issue upon the pleas, which he refused to do. Upon this the court say the conduct of |