REPETITION, construction of wills. A repetition takes place when the same testator, by the same testamentary instrument, gives to the same legatee legacies¹ of equal amount and of the same kind; in such case the latter is considered a repetition of the former, and the legatee is entitled to one only. For example, a testator gives to a legatee "ô30 a year during his life;" and in another part of the will he gives to the same legatee "an annuity² of ô3O for his life payable³ quarterly," he is entitled to only one annuity of thirty pounds a year. 4 Ves. 79, 90; 1 Bro. C. C. 30, note.

REPETITION, civil law. The act by which a person demands and seeks to recover what he has paid by mistake, or delivered on a condition which has not been performed. Dig. 12, 4, 5. The name of an action which lies to recover the payment which has been made by mistake, when nothing was due.

2. Repetition is never admitted in relation to natural obligations which have been voluntarily acquitted⁴, if the debtor⁵ had capacity to give his consent. 6 Toull. n. 386. The same rule obtains in our law. A person who has voluntarily acquitted a natural or even a moral obligation, cannot recover back the money by an action for money had and received, or any other form of action. D. & R. N. P. C. 254; 2 T. R. 763; 7 T. R. 269; 4 Ad. & Ell. 858; 1 P. & D. 253; 2 L. R. 431; Cowp. 290; 3 B. & P. 249, note; 2 East, R. 506; 3 Taunt⁶. R. 311; 5 Taunt. R. 36; Yelv. 41, b, note; 3 Pick. R. 207; 13 John. It. 259.

3. In order to entitle the payer to recover back money paid by mistake it must have been paid by him to a person to whom he did not owe it, for otherwise he cannot recover it back, the creditor⁷ having in such case the just right to retain the money. Repetitio nulla est ab eo qui suum recepit.

4. How far money paid under a mistake of law is liable to repetition, has been discussed by civilians⁸, and opinions on this subject are divided. 2 Poth. Ob. by Evans, 369, 408 to 487; 1 Story, Eq. Pl. §111, note 2.

REPETITION, Scotch⁹ law. The act of reading over a witness deposition¹⁰, in order that he may adhere to it, or correct it at his choice. The same as Recolement, (q. v.) in the French law. 2 Benth. on Ev. B. 3, c. 12, p. 239.

REPLEADER, practice. When an immaterial issue has been formed, the court will order the parties to plead de novo, for the purpose of obtaining a better issue this is called a repleader.

2. In such case, they must begin to replead at the first fault. If the declaration, plea and replication be all bad, the parties must begin de novo, if the plea and replication be both bad and a repleader is awarded, it must be as to both; but if the declaration and plea be good, and the replication only bad, the parties replead from the replication only.

3. In order to elucidate¹¹ this point, it may be proper to give an instance, where the court awarded a repleader for a fault in the plea, which is the most ordinary cause of a repleader. An action was brought against hushand and wife, for a wrong done by the wife alone, before the marriage, and both pleaded that they were not guilty of the wrong imputed¹² to them, which was held to be bad, because there was no wrong alleged¹³ to have been committed by the hushand, and therefore a repleader was awarded, and the plea made that the wife only was not guilty. Cro. Jac. 5. See other instances in: Hob. 113: 5 Taunt. 386.

4. The following rules as to repleaders were laid down in the case of Staples¹⁴ v. Haydon, 2 Salk. 579. First. That at common law, a repleader was allowed before trial, because a verdict did not cure an immaterial issue, but now a repleader ought not to be allowed till after trial, in any case when the fault of the issue might be helped by the verdict, or by the statute¹⁵ of jeofails. Second. That if a repleader be allowed where it ought not to be granted, or vice¹⁶ versa, it is error. Third. That the judgment¹⁷ of repleader is general, quod partes replacitent, and the parties must begin at the first fault, which occasioned the immaterial issue. Fourth. No costs are allowed on either side. Fifth. That a repleader cannot be awarded after a default at nisi prius; to which may be added, that in general a repleader cannot be awarded after a demurrer or writ¹⁸ of error, without the consent of the parties, but only after issue joined; where however, there is a bad bar, and a bad replication, it is said that a repleader may be awarded upon a demurrer; a repleader will not be awarded where the court can give judgment on the whole record, and it is not grantable in favor of the person who made the first fault in pleading. See Com. Dig. Pleader, R 18; Bac. Abr. Pleas, M; 2 Saund. 319 b, n. 6; 2 Vent¹⁹. 196; 2 Str. 847; 5 Taunt. 386; 8 Taunt. 413; 2 Saund. 20; 1 Chit. Pl. 632; Steph. pl. 119; Lawes, Civ. Pl. 175.

5. The difference between a repleader and a judgment non obstante veredicto, is this; that when a plea is good in form, though not in fact, or in other words, if it contain a defective²⁰ title or ground of defence by which it is apparent to the court, upon the defendant²¹'s own showing, that in any way of putting it, he can have no merits, and the issue joined thereon be found for him there, as the awarding of a repleader could not mend the case, the court for the sake of the plaintiff will at once give judgment non obstante veredicto; but where the defect is not so much in the title as in the manner of stating it, and the issue joined thereon is immaterial, so that the court know not for whom to give judgment, whether for the plaintiff or defendant, there for their own sake they will award a repleader; a judgment, therefore, non obstante veredicto, is always upon the merits, and never granted but in a very clear case; a repleader is upon the form and manner of pleading. Tidd's Pr. 813, 814; Com. Dig. Pleader, R 18 Bac. Abr. Pleas, M; 18 Vin. Ab. 567; 2 Saund. 20; Doct. Plac. h. t.; Arch. Civ. Pl. 258; 1 Chit. Pl. 632; U. S. Dig. XII.