From the very learned work of Stephen, it appears (see Stephen on Pleading, pp. 75, 76, 254, and Appendix, note 34) that adding the similiter, and joining the issue, are strictly the same thing, the terms similiter and joinder in issue having exactly the same meaning. Originally the object of the similiter was to signify the party's acceptance not only of the traverse, but of the mode of trial offered.
We learn from this author, that in the beginning this mode of trial *Page 167 was called jurata e consensu, because it was not then a matter of right, but a matter of agreement. Now that the trial by jury is a matter of right, if the traverse is correctly taken and the issue rightly tendered, the similiter is matter of form merely, and may be added by the party tendering the issue if the other neglects it. But as this depends upon the traverse being rightly taken and the issue rightly tendered, the party undertaking to join the issue for his antagonist does it at his peril.
Thus I think, in the case of a special traverse, correctly drawn, if the party should pass over the absque hoc, and traverse the inducement and put himself on the country, he could not safely add the similiter for the other party, because the other party would not be bound in law to accept the issue tendered, and therefore the joinder in issue would not be matter of form.
If the party traversing offer, any other legal mode of trial, — as, for instance, by the record, — issue is never joined, that being only the form of accepting the trial by jury, which has been retained among the forms after its necessity has ceased.
According to this view, it having been held in the case of Smith v. Gilman Clarke, 3 N.H. 501, "that a writ of review could not be sustained, except in cases where there was an issue in fact to be tried by a jury joined between the parties," the law was very correctly expressed in the Revised Statutes by the words "issue of fact joined," those terms exactly meaning an issue of fact made up to be tried by the jury. And inasmuch as no issue of fact was ever joined, excepting for a jury trial, the same idea was aptly expressed by the words "issue joined," in the General Statutes. The words in the statute being adapted to express precisely what had so long been held for law in this state, I find it difficult now to give them any other signification. Of course, we have here nothing to do with that other formula technically called the joinder in demurrer, which is used in making up what is termed an issue of law. In the light of Smith v. Gilman, it is not likely to be held that under our present statute all action of review would lie to revise a decision of a matter of law.
Whether a review would be sustained, where the facts were tried by the court under the statute, need not now be determined. There being strictly no occasion to join issue for such a trial, it would hardly come within the terms of the statute.
When, however, it is apparent from the record that the issue has been rightly tendered, and therefore that joining the issue, i.e., adding the similiter, is matter of form, its omission must I think be remedied by our statute of jeofails. So, if the court can see by the record that an issue has been rightly tendered, and practically accepted by going to trial, I think that the object and intent of the statute having been achieved, the party by whose negligence or design the form has been omitted ought not to be permitted to defeat a review by saying that he did not join the issue. It is true, that in the case under consideration there was no trial by jury; but I think this cannot alter the result. *Page 168 By the act of Jan. 2, 1829 (N.H. Laws, ed. 1830, p. 88), it was provided "that every action tried in the superior court of judicature, and all actions tried in the court of common pleas of which that court has final jurisdiction, may be reviewed." In the Revised Statutes, for "tried" the words "all issue of fact has been joined" are substituted, and in the General Statutes the words are "issue has been joined." I do not see how to avoid construing the statute now to embrace cases where there is a judgment of nonsuit, or default, after an issue has been joined. The theory of a review, as matter of right, seems to be that it is necessary to give an opportunity to escape the consequences of mistake, misapprehension, surprise, or accident, by one review as matter of right. It is, perhaps, quite as likely to happen that a nonsuit, or default, would be submitted to under such circumstances, as that an unfavorable verdict should be suffered.
The court can see that the general issue was rightly tendered, and nothing remained but to add the similiter, which in such case being matter of form, the want of it must I think be held to be cured by the statute.
Exceptions overruled.