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Rule Iii Issue when Well Tendered Must Be Accepted


RULE III ISSUE WHEN WELL TENDERED MUST BE ACCEPTED. The third rule of pleading is that if issue be well tendered both in substance and form it must be accepted, and the other party may not demur, traverse, or plead in con fession and avoidance. The exception to this rule is, that a party may plead in estoppe/ even after issue is well tendered.

The acceptance of the issue, in case of trial by jury, is called the similiter, because the usual form of word ing it is, "And the said A. B. doth the like." This is added in making up the issue or paper-book. It may be filed or delivered, however, before that transcript is made up, in which case its form is slightly different, and it is called a special similiter.

As the party has no option in accepting an issue when well tendered, the entry of the similiter is a mere matter of form, and may be made by the party who tenders the issue. But the other party for whom this similiter is thus entered, may, if he conceives that the issue is not well tendered, strike out the similiter and demur to the defective tender.

The rule that an issue must be accepted, extends to an issue in law also, so that the party whose pleading is opposed by a demurrer is required to accept the is sue in law, and the formula by which he does this is called a joinder in demurrer. IIere he is bound to ac cept, however, for he cannot demur to a demurrer.

So far we have discussed rules which tend simply to the production of an issue.

party and similiter