author: Mr. Justice GRIER

text:
    Benjamin D. Harris, Plaintiff in error, v. James D. Wall,
    The conditions under which a parly is permitted and a magistrate authorized to take a deposition de bene esse by the thirtieth section of the Judiciary Act are,— 1st That the witness lives at a greater rKct-nnce from the place of trial than oné hundred miles.
    2d. Or is bound on a voyage to sea.
    3d., Or is about to go out of the United States.
    4th. Or out of 'such district to a greater distance from the place of trial than one hundred miles before the time of trial.
    5th. Or is ancient or very infirm.
    And to entitle himself .to read the deposition upon the trial, the pariy.must show, — • 1st That the witness is dead.
    2d. Or gone out of the United States.
    3d, Or to a greater distance than one hundred miles from the place where the court is sitting.
    4th. Or that, by Reason of age, sickness, or bodily infirmity, he is unable to travel and appear at court.
    The authority or jurisdiction conferred on the magistrate is special, and confined within certain limits or conditions, and the facts calling for the exercise of it should appear upon the face of the instrument, and not.be left to parol proof.
    Therefore, where the magistrate, in his notice to the opposite party, only said that the witness was about to “ depart the State,” and in his certificate omitted to state the reason for taking the deposition, it was not competent for the party, at the trial, to supply the defect by proving that the witness was about to go out of the United States.
    The service of the notice upon the opposite parly should be certified by the magistrate as well as the marshal.
    When counsel have signed an agreement that a deposition may be, read in evidence to the jury, it is too late, after its reading, to ask the court to exclude from the consideration of the jury a part of the deposition.
    Tmscase was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Mississippi.
    In February, 1839, the following sealed note was executed: —
    $10,391.06, Clinton, Miss., February, 1839.
    On or before the first day of January, eighteen hundred and forty,-we or either of us promise and bind ourselves, our heirs, &c., to pay to Benjamin D. Harris, his heirs or assigns, the sum of ten thousand three hundred and ninety-one dollars and six cents, with éight per cent, interest thereon from the date hereof.
    Given under our hands and seals, the day and date above written. T. W. Wínteb. [seal.] Jas: M.. Wall, [seal.]

      Suit was brought upon this note at May term, 1840. Judgment went against Winter by default, and it is not necessary to notice him further.
    Wall put in three pleas. The first two were substantially the same, and were, that the introduction of slaves into Mississippi, as merchandise, after the first day of May, 1833? was prohibited by the constitution of that State, and the contract for their purchase and sale, therefore, void. These pleas averred that the note was given for the purchase of slaves so introduced. To these pleas the plaintiff took issue.
    The third plea was, that the slaves were above the age of fifteen years, and were introduced into the State of Mississippi from one of the United States as merchandise,, and sold to Winter by the plaintiff, without having complied with the fourth and fifth sections of an act entitled “ An act to reduce into one the several acts concerning slaves, .free negroes, .and mulattoes,” passed June 15th, 1822. To this plea the plaintiff demurred.
    In November, 1844, the cause came on for trial, issue having been joined upon the first two pleas, and a joinder iñ demurrer having been filed as to the third. The jury found a verdict for the defendant upon the issue upon the first two pleas, and the record did not show any judgment of the court upon the demurrer.
    In the course of the trial, the plaintiff, Harris, took four exceptions to opinions of the court.
    . 1st. As to the admissibility in evidence of the deposition of William S. Rayner.
    2d. As to the admissibility in evidence of parts of the deposition of Benjamin G. Sims.
    The 3d and 4th were,' that Wall had filed a bill in chancery against Harris, which Harris had answered: and that Wall could not, in a 'trial at law, introduce evidence to contradict Harris’s answer.
    1st exception, — as to Rayner’s deposition.
    The following is the notice and certificate attached to the deposition.
    “ Jackson, May 1, 1843.
    “Mr. B. D. Harms, or Messrs. Rives & Shelton, his Attorneys at Law: —

      “ Take.notice, that on Wednesday next, the third’day of May, A. D. 1843, at the clerk’s office of the Circuit Court of the United States for the Southern District of Mississippi, between the hours of eight o’clock, A. M., and three o’clock, P. M., at the town of Jackson, I shall take the deposition of WilUam S. ■Rayner, (about to depart the'State,) to be read on the part of the defendant de bene esse in a certain action at law, depending in said court, wherein said Harris is plaintiff, and Winter and Wall defendants; vrhere you can attend. Yours, &c.
    “ Geo. W. Miller, U. S. Corrirmssioner. ’ ’
    Marshal’s return: —. “ Executed by handing Wm. M. Rives a Copy between the hours of eleven, A. M., and twelve, M., May 1, 1843. “ Auderson Miller, Marshal,

    By Z. P. Wardell, D. M.”

      “ The deposition of William S. Rayner, taken before the undersigned commissioner of affidavits in and for the Southern District of Mississippi, at the clerk’s office of the Circuit Court of the United States for the Southern District of Mississippi, in the town of Jackson, between the hours of eight o’clock,. A. M., and three, P. M., on the 3d day of May, A. D. 1843, according to a notice by me issued and hereunto annexed; said deposition to be read as evidence on the part of the defendant de bene esse in the trial of a certain, action at, law, depending and mentioned in the Circuit Court of the United States for the Southern District of Mississippi, wherein Benjamin D. Harris is plaintiff, and , Winter and Wall defendants.”
    (Then follows the deposition, to which is attached the following certificate: —)

      “ United States of America, Southern District of Mississippi,. set.

    “I, George W. Miller, commissioner of affidavits^ &c., in and for the Southern District of Mississippi, do hereby certify that the foregoing deposition of William S. Rayner was taken, subscribed, and sworn to before me, and by me reduced to writing in the presence of said witness, at the time and place mentioned in the caption thereof, at the time of which' I was attended by James M. Wall, one of the defendants, and Williám M. Rives, Esq., attorney for plaintiff, "who declined putting any interrogatories to said witness. I further certify that I am not a counsel for either party, or interested in the event of said cause.
    “ Given under my hand and seal at Jackson, this 3d day of May, A. D. 1843.
    “ Geo. W. Miller, U. jS'. Commissioner.”

    The court allowed the deposition to be read in evidence, to which the plaintiff excepted.
    2d exception, — respecting the deposition of Sims.
    This deposition had upon it the following indprsement;

      “When sworn to, it is agreed this deposition of B. G. Sims may he used in the cause stated in the caption as evidence.
    “ Rives & Shelton & Thompson, for Plaintiff.

    Mates & Clifton, for Defendant Wall.”

    After the defendant had read to the jury the deposition of Benjamin G. Sims, which was done subject to exceptions, the plaintiff moved the court to exclude from the jury that part of said deposition which prove'd or tended to prove said plaintiff to be a negro-trader ; but the court overruled said motion, on the ground that the counsel of the plaintiff had agreed in writing on said deposition, that the same might be read in evidence.
    This opinion of the court constituted the second exception^
    The third and fourth exceptions were abandoned by the counsel for the plaintiff in error, and need not be further npticed.
    The cause was argued by Mr. . Nelson, for the plaintiff in error, and Mr. Clifton, for the defendant, in error.

      Mr. Nelson.
    The first exception relates to the admissibility in evidence of the deposition of William S. Rayner, and is grounded on the insufficiency of the notice, under the act of September 24th, 1789, $ 30.
    That- act authorizes the taking of the deposition of a witness de bené esse “who shall live at a greater distance from the place of trial than one hundred miles,” or “is bound on a voyage to sea,” or “ is about to go out of the United States,” or “out of such district (in which a cause may be depending) and to a. greater distance from the place of trial than One hundred miles,” upon proper notice to the adverse party.
    Now the" notice given in regard to this deposition does not bring the case within ..the aOt. of Congress, because,'whilst it states that the witness was about to depart the State, it does not allege that he was about to go. to a greater distance than one hundred miles from the place of trial, and. it might' well have been that the witness would leave the State, and yet be within reach of the process of the court.
    To show the strictness with which the act of Congress in question has been construed, reference is made, to the cases following. Bell v. Morrison et al., 1 Peters, 355 ; The Samuel, 1 Wheaton,* 9; The Patapsco Ins. Co.* v. Southgate, 5 Peters, 604; The Thomas and Henry, 1 Brockenbrough, 373.

    The second exception regards the admissibility in evidence of part of the deposition of Benjamin G. Sims, which the court below suffered to go to the jury, because of the agreement of counsel appended to it.

      It is submitted that the court erred in this, since the true construction of that agreement is, that the deposition was tó be received in evidence only in so far as the matters contained -in it were legally admissible in support of.the issues-joined in the cause; and it being conceded, as indeed it cannot be denied, that the portion of the deposition excepted to was' not in itself evidence, the agreement could not make it admissible. It is like the case of a witness examined on the stand, whose statements improperly made in the hearing of the jury will be excluded by the court at any time during the trial.
    The third and fourth exceptions, which rélate to the admissibility of the answer in chancery, are believed to be untenable.
    But, independently of these exceptions, the plaintiff in efror insists that the judgment of the court below must be reversed, because the record shows that nothing has been found to justify that judgment.
    The issues passed upon the jury, as the court will perceive, are Wholly immaterial, the existence or non-existencé of the facts involved in them in no wise affecting the rights of the parties to the controversy.
    . They put the defence in the action exclusively on the ground of the consideration of the bill sued upon, which was, that it had been given for slaves introduced by. the plaintiff ’into the State of Mississippi after the 3d day of May, 1833.
    Now that ithis consideration was a good one, has been'over and over again settled by this court. . Groves v. Slaughter,' 15 Pet. 449; Harris v. Runnels,- 5 How. 135; Truly v. Wan-Zer et al., 5 How. 141; Sims v. Hundley, 6 How. 1.
    In the last of these cases, on page 6, Chief Justice Taney says, — “It is the settled law in this court, that contracts of this description, made at the time when these notes bear date, were valid, and not prohibited by the constitution of Mississippi.”
    This being the law of the case, it is clear that the plaintiff" below might have treated these pleas as nullities, and, as far as they were concerned, have signed judgment for the want of a plea.
    But he inadvertently took issue upon them, and the jury- de- . cided the facts against him; and in that state of the case it is equally clear that he might have moved the court for judgment non obstante veredicto.

    This he omitted to do, and now the inquiry is whether that omission precludes him from availing himself of' the insufficiency of the judgment in this court.
    That' it does not, the plaintiff in error thinks is clear upon principle as well as upon authority.

      That the issue was not material, see 2 Saunders, 319 (No. 6).
    That the defect is error, for which the judgment will be reversed, it is respectfully submitted, will be conclusively shown by the following cases. 6 Cranch, 221, 223, 225; Kirby, 139; 2 Root, 4, 204; 2 T. R. 759; 2 Archbold’s Practice, 758; 1 Mason, 62; 4.Howard, 1.31.
    In the case last cited, , the question was elaborately examined, ánd the principle and practice settled, under circumstances much less strong than those which are disclosed in the record in this case.
    But it is supposed by the counsel.for .the defendant in error, that the judgment rendered in the court below must be sustained because .it is said to be a general judgment, and that the third of the pleas of the defendant below set up a sufficient defence to the action.
    To this it is answered, in the first place, that there was no. judgment rendered in the court below upon that plea, and this is manifest from the whole record:
    The plea was in bar, and, if good, furnished a full defence to the plaintiff’s action Yet a jury was called to decide the issues,of fact, wholly unnecessary to be passed upon if the plea in question had been adjudged good.
    Nor does the judgment profess to be rendered on the demurrer, —> it is on the verdict.
    As to the form of a judgment on demurrer, see 2 Saunders, 300 (No. 3);.2. Archbold’s. Practice, 1.1; Archbold’s Forms, 306; Tidd’s Practical Forms, 200.
    Even, however, if it were otherwise, and judgment had been rendered on the demurrer, it could not have .been supported,
    This plea was framed on the act of Mississippi of the 18th of June, 1822, 4th and ■ 5th sections (Howard and Hutchinsbn’s Digest, 156).
    The first-mentioned of these sections (the fourth) prescribes the mode and manner in which slaves may be imported as merchandise into Mississippi; the fifth, what shall be done when such slaves are sold.
    The sixth section of the same act imposes a penalty of $100 for every slave sold without a compliance with the provisions of the fourth and fifth sections.
    Now it is apprehended, that, upon the true construction of this act, the non-compliance by the seller with the provisions of the sections mentioned does not. invalidate a sale made j>y. him. On the contrary, the sixth section of the act, by its terms, recognizes the validity of such sales.

      The. plea does not allege any combination or collusion between the plaintiff and defendant in regard to tlie introduction of the slaves sold into Mississippi. Can it, then, be doubted, that, under the provisions recited,' the defendant acquired a title to the slaves in question under his purchase ? And if so, is it not equally clear, that, though liable to the penalty denonnóed by the sixth section of the act in question, the plaintiff is competent to enforce his contract against the defendant ? It can hardly be that the defendant has acquired a title to the property purchased, and. yet is not answerable for its price.
    Questions of this character have been frequently considered and decided. See 11 Wheat. 258; 4 Burr. 2069;. 6 T. R. 410 ; 3 T. R. 418 ; 1 Bos. & Pull. 295 ; 7 Taunt. 246.; 4 N. Hamp.. 290;'8 Wheat. 357'; 12‘Peters, 70; Walker,293; 1 Litt. 16, 19.
    • In any view, therefore, which may be taken of this act of Mississippi, (assuming it to be in force, though some intimation is given in the notps of the defendant’s counsel, that it has been, repealed,) it is submitted, that it cannot avail'to defeat the recovery by the plaintiff of his demand,. But it is insisted that the question does not arise in this case, the record showing that the demurrer, at the time of thé trial of the issues before the jury, was undisposed of, and that the judgment was rendered on the verdict alone.

      Mr. C. R. Clifton, fox defendant in error, in reply.
    1. The act of 1789, which authorizes the taking of the deposition of a witness de bene esse, nowhere requires that the notice should' show that the case was within the provisions of the act. The decisions cited by the counsel for the plaintiff only establish what has never been controverted, that the .party who offers a deposition taken de bene esse must show that the casé provided for by the act existed, and that there had been a full compliance with its requisitions.
    In this case the counsel of the opposite party attended the examination.
    When the deposition was'offered, in open court, the party offering it proved, that, at the time it was taken, the witness was on his way to the republic of. Texas, — that is, he was “about to go out of the United States,” — and that he then, "at the time of offering it, resided in that republic. These facts having been proved by evidence, aliunde,, the certificate of the commissioner showed every other fact required by the act of Congress to render the deposition competent, and We insist there was a compliance with all its provisions.
    The only object of the,notice was to secure the attendance-of the counsel at the examination. He attended, and pleads in abatement to the notice, that.it was insufficient, — his presence refuting his plea.
    2. The deposition of Sims ought not to have been excluded. The issue was as to what was the consideration of the bond sued on; it being averred on the one side that it was for slaves introduced into the State of Mississippi and sold in the year 1836, and denied on the other. The deposition contains sev-: eral circumstances conducing to show the truth of this averment ; and among these is the one objected to, — that is, that the plaintiff had carried slaves to Mississippi for sale, and was, in fact, engaged in the avocation of a “ negro-trader.” How far the defendant would have been permitted to go in making this proof, in opposition to the will of the plaintiff, it is not now needful to inquire, since no such opposition was made. This fact was proved in a deposition, which the plaintiff agreed should be read as evidence to the jury; and he cannot now ask the appellate court to reverse the judgment, because the court below jheld him to his own agreement.
    (The counsel then proceeded to the discussion of the point involving the construction of the constitution of Mississippi, and arising on the issues found by the jury for the defendant; but was arrested for the moment by the chief justice, who, after conference with the other members of the court, said, that this question had been repeatedly-settled by this court, and the .court could not consent to consider it an open question, and hear it again argued. The counsel acquiesced with manifest reluctance, and, being asked^by a member of the court if there was ally other point in the case, said: —)
    There is a special plea founded upon the fourth and fifth sections of the act of the 18th of June, 1822, which, if not repealed by the provision of the constitution of Mississippi as to the introduction of slaves, presents a valid defence to the action. It* is demurred to.
    In Mississippi, these sections have been considered as repealed, upon the ground that the constitution, which is the supreme law, prohibits .the introduction of slaves absolutely, and therefore repeals all laws permitting them to be imported upon condition.
    This court, adhering' to its former decisions, cannot regard these sections as repealed, because, if .the constitution did not prohibit their introduction from the 1st day of May, 1833, the law which specified the conditions upon which they might bq imported and sold remained in full'force.
    The language of these sections is: — “It shall not be lawful for any person or persons to import into this State, from any of the United States, or the Territories thereof, as merchandise, any slave or slaves, either- negro or mulatto, or of any other description whatever, above the age of fifteen years, without having previously obtained a certificate, signed by two respectable freeholders in the county of the State or Territory from whence such slave or slaves is or are brought; which certificate shall contain a particular description of the stature and complexion of such. slave or slaves, together with the name, age, and sex of the same ; and,' furthermore, that the slave or slaves therein mentioned and described have not been guilty of murder, burglary, arson, or other felony, within their knowledge or belief, in such State or Territory; which certificate shall be signed or' acknowledged before the clerk of the county of the State or Territory where the same is given and certified by said ■ clerk, specifying therein that the persons whose signatures are affixed thereto are respectable freeholders of the .county and neigh-bourhood in which they reside.

      “ Any person, who shall sell any slave or slaves brought into this State as merchandise, shall cause to be registered with the register of the' Orphan’s Court of the county where such slave or slaves are, or are first sold, every certificate as aforesaid, the seller previously swearing that he béíieves the contents of such certificate or certificates to be just and true ; which oath said register is hereby authorized and required to administer; for .which service he. shall receive the sum of one dollar for each certificate so registered. ” (See How. and Hutch. Digest, 156, and Hutchinson’s Mississippi Code, 513.) The sixth section of the act imposes a penalty of f 100 for every slave sold without ■ a compliance with the said fourth and fifth sections, recoverable in any court of competent jurisdiction.
    The facts stated in this plea are confessed on the record. The judgment of the. court for the defendant is general.
    This court will inspect the entire record, and give judgment for that party who may appear to be entitled to it; and if the plea interpose a good defence to the action, the judgment of the court below, according to familiar principles, will not be disturbed.
    The counsel on the other side assumes, that, even if this were so, the defence disclosed by that plea is not a valid one; and he refers to a variety of cases for the . purpose of sustaining that position. ■
    The' first of these is that of Armstrong v. Toler, from 11 Wheaton, which, as it is understood by me, cannot be tortured into an authority for the plaintiff. - On the contrary, it decides, that, where a contract grows out of an illegal act, á court-of justice will not lend its aid to enforce it. The selling of a slave, without a previous compliance with the requisitions of the law, which could alone make such sale legal, was an illegal act; and this, therefore, is an authority for the .defendant.
    The case from 4 Burrow was an action on a bond given by the defendant to the plaintiff, to repay to the plaintiff the one half of a sum q£ money which the plaintiff had previously paid, for himself and the defendant, to a third party, in relation to a transaction forbidden by act of Parliament; and it was sáid by the court to bé a fair and honest transaction between these two, and not in violation of the act.
    That from 6 T. R. 410, Booth v. Hodgson, is an authority for the defendant.
    In delivering the opinion in 3 T. R. 418, Lord Kenyon expressly declares that none of the provisions of the act were infringed.
    1 Bos. & Pull, decides, that, if the contract be stained by any thing illegal, the plaintiff shall not be heard in a court of law. Simpson v. Bloss, 7 Taunt. 246, holds that no action can he founded on an illegal contract, and furnishes a test for determining what is an illegal contract, which is decisive against this.
    The case from 4 N. Hamp. 290, is an express authority for the defendant. It decided, that, when a statute inflicts a penalty for the doing of a particular act, that act is, by implication, prohibited and illegal. “ Where an illegal contract is made between parties who are in pari delicto, the contract is void, and neither party can maintain any action which requires for its support the aid of such illegal contract.”
    The other cases seem to me to have no very direct application to the question, and certainly furnish no support to the idea, that a party can successfully assert a right in a coiirt of justice, to which he has entitled himself by a violation of law.
    Indeed, I had supposed, if there vjas a universal and uncon-troverted proposition in the common law, as it is known and understood in England and in this country, it was, that no act done in violation of the laws of the land, or in disregard or contravention of its principles, can be the foundation of a claim which can be enforced at law or in equity. And this has been the rule from Lord Holt to the present tímelas can be shown by an unbroken series of decisions. In truth, this principle is much older than the common law, and was incorporated into that system from the civil law, whence it comes to us, clothed with the sanction of’many centuries.
    Where the law, as in this case, declares it shall nqf be lawful to do a particular, thing, unless Under certain' conditions and limitations, no action can be maintained upon a contract growing out of the doing of that thing, unless those conditions and limitations have been CQmplied with. To declare an act unlawful, and at the .same time to give a remedy to the person guilty of doing .it, founded on his illegal act, would be to make the law as a house divided against itself. The law was never guilty of the absurdity of giving a legal action for an illegal act.
    In Bartlett v. Yinor, Carth. 251, Chief Justice Holt says, — “Any contract made for or about any matter or thing which is prohibited and made unlawful by any statute is a void contract, though the statute itself doth not mention that it shall be so, but only inflict a penalty on -the defaulter, because a penalty implies a prohibition, though there are no prohibitory words in the statute.” The same is held in Bensley v. Bignold, 5 Barn. <fc Aid. 335; Drury v. Defontaine, 1 Taunt. 136 ; 14 Mass. 322; Holt’s N. P. Cas. 435; This rule is now. applied, as well to cases mala prohihita as mala in se. 2 Bos. & Pull. 374, 375; 5 Barn. & Aid. 341; 2 Wilson, 351; 17 Massi 281.

      u The policy of a penal statute may be enlarged, not for the purpose of inflicting the penalty, but to avoid the contract.1’ Dwarris on Statutes, 752; Mitchell®. Smith, 1 Binney, 110-118; 4 Yeates, 34 — 54; 4 Serg. & Rawle, 151.
    No recovery can be had for printing a newspaper, whose publisher does not first make the affidavit directed by the act, though the act does not, in terms, avoid the contract. Mar-chant v. Evans, 8 Taunt. 142; Roby v. West, 4 N. Hamp. 285.
    The 17 Geo. 3, ch. 42, sec. 1, declares, all bricks made for sale shall be 2| inches thick and 4 wide, and the second section imposes twenty, shillings for. every thousand bricks so made of less dimensions, as a penalty. Held, that brieks of less dimensions could not be recovered for, though there was nothing in the act declaring the sale void. Law v. Hodgson, 2 Camp. 147.
    And in the case of Sprergean v. McElwain, 6 Ohio. 442, it is decided, that where the statute forbids the keeping of a ninepin alley, under a penalty, a carpenter who builds one, knowing the object, cannot recover the price of building.
    It would he useless to. multiply authorities on this point. The courts of England and this country, with a rare uniformity, have held that every contract made in violation of the laws of the land, or without complying .with, its provisions, or which is made in disregard or contravention of the statute or common law, is void, and cannot be enforced in law or in equity. 1 Leigh’s N. P. 6 —13; 2 Peters, 539; 2 Carr. & Payne, 472; -4 T. R. 466; 3 ib. 454; Cowper, 191; 2 Doug. 698; 1 Maulé & Selw. 593; 5 Barn. & Ad. 887; 4 Peters, 410; 5 Johns. 320'; 1 Randolph, 76; 3 ib. 214; 1 Barn. & Cres. 192; 5 ib. 887.
   Mr. Justice GRIER

delivered the opinion of the court.

On the-trial of the issues of'fact in this case before the Circuit Court, the defendant offered to read the deposition of William S'. Rayner, which had been taken de bene esse, iinder the. thirtieth section of the Judiciary Act. It was objected to by the plaintiff’s counsel, as not coming within the conditions prescribed by that act. The court admitted the deposition, and sealed, a bill of exceptions, which is the foundation of the first assignment óf error.

A notice was served on tbe plaintiff’s counsel,.signed by the commissioner or magistrate, and stating the time and place at which it was intended to be taken, and that “ I shall take the deposition of William S. Rayner, (about to depart the State,) to be read on the part1 of the defendant, de bene esse,” &c.

When the deposition was offered, the defendant proved to the court, that “ when said deposition was taken, said Rayner was on his way to the republic of Texas, to reside there, and that he was a citizen of, and resided in, said republic.”

It has been decided by this court, in the case, of Bell v. Morrison, 1 Peters, 351, that “ the authority to take depositions in this manner, being in derogation of the rules of common law, has always been construed strictly, and therefore it is necessary to establish that all the requisitions, of the law have been complied with before such testimony is admissible.”

The conditions under which a party is permitted, and a magistrate authorized, to take depositions de bene esse, under this act, are, — 1st, that the witness lives at a greater distance .from the place of trial than one hundred miles; 2d, or is bound on a' voyage to sea; 3d, or is about to go out of the United States;• 4th; or out of such district to a greater distance from the place of trial than one hundred miles, before the time of trial; 5th, or is ancient or very infirm.

The magistrate is required also to deliver to the court, together with the depositions so taken, a certificdte of the reasons of their being taken, and of the notice, if any, given to the opposite party. ■ In order to entitle the party to. read such depositions when taken and certified in due form of law, he must show, that, at the time of the trial, — 1st, either the witness is dead ; 2d, or gone out of the United States-; 3d, or to a greater distance than one hundred miles from the place where the court is sitting; 4th, or that, by reason of age, sickness, or bodily infirmity, he is unable travel and appear at court.

Now, assuming that the defendant has brought himself within the conditions which would enable him to read .a deposition regularly taken and certified according to the requisitipns of this act, the question is, whether this, deposition was so taken and certified.

The authority or jurisdiction conferred on the magistrate by this act is special, and confined within certain limits or conditions, and the facts calling for the exercise of it should appear upon the face''of the instrument, and not be left to parol proof. The act of Congress requires them to be certified by the magistrate. It would be reasonable, also, where notice is required to be given to the opposite party, that such notice should show on its face that, the contingency has happened which confers jurisdiction on the magistrate, and gives a right to the party to have the deposition taken, so that the party on whom the notice is served may be able to judge whether it is necessary or proper that he should attend. The notice in this • case states .only that the witn'ess is “about to depart the State,”.not that he is bound on a voyage to sea, or about to go out of the United States, or a hundred miles from the place of trial.

This notice is appended or annexed to the' deposition, with a return of service by |the marshal; but the service is not certified by the magistrate, nor does he certify, as required by the act, “ the. reasons ” for taking the deposition. The presence of the plaintiffs attorney, who declined to take any part in the proceedings, cannot affect the case, or amount to a waiver of any objection to the want of authority apparent on the face of this certificate.

We are of opinion,i herefore, that'the court erred in admitting this deposition to be read to the jury.

The third and fourth exceptions have been abandoned on the argument, and the second does not appear to be well taken. When parties, with a full-'knowledge of the contents of a deposition, agree that it shall be read'to the jury on the trial of the cause, they have no right to complain of thé court for not excluding from the consideration of the jury the very matter which they themselves have agreed should be read to them.

The record in this case does Sot show that any judgment was given by the court below .on the demurrer. If a defendant plead several pleas in bar, either of which is a defence to the whole action, and one be found in his'favor, he is entitled to judgment. . For this reason the parties may have considered it unnecessary to pray the judgment of the court on the plea demurred to, as the issues on the other pleas had. been found in favor of the defendant, and judgment, rendered thereon for him. And the plaintiff here, wlr. was also plaintiff below, cannot assign error on an issue" in which there was no judgment of the court below.' The -validity of the defence se't up in that plea is consequently not before this court, and cannot be noticed. But as the trial of these issues below took place before the de-. cisión in this court of the cases of Harris v. Runnels, 5 How. 135, and Sims v. Hundley, 6 How. 1, and as these cases show that the issues of fact are immaterial, though found for the defendant, the defence will probably turn wholly on the decision of the point raised by the demurrer.

The judgment of the Circuit Court is reversed.

Order

This cause came on to be Heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo.


source: Caselaw Access Project

author: Mr. Justice WOODBURY

license: Public Domain

text:
    Thomas Townsend, Plaintiff in error, v. Robert Jemison.
    ¡Although, as a general rule, all issues, whether of law or fact, ought to be disposed of iu some way by the court below, yet, under the. particular circumstances of this case, which presented the appearance upon the record of a demurrer which had not been disposed of, this court will presume that the demurrer, had been withdrawn or overruled.
    The thirty -second section of the. Judiciary Act (1 Stat. at Large, 91) forbids a reversal of the judgment on account of the omission of the'clerk to record such-waiver or overruling.
    The statutes of jeofails examined. -
    Where there are special and general counts in a declaration, and a demurrer is filed which affects only tibe special counts, .and the party goes to trial upon the general ' issue plea to the general counts, a verdict and judgment so obtained will not be set aside Because the demurrer was undisposéd of. A statute of Mississippi, where the cause was tried, allows one good count to sustain a judgment.
    Where the plea was bad, and the demurrer was to a replication to this bad plea, the first fault in pleading was committed by the defendant, and judgment against him was properly given.
    This case -was brought up, by writ of error, from the District Court of the United States for the Northern District of Mississippi.
    It was a suit brought by Jemison against Townsend, to recover a sum of money which Jemison had paid for him to the Mississippi Union Bank, at Macon. The consideration appears to have been,’ that Townsend should take up a note at the Commercial Bank of Columbus, for whicli he, Townsend,, was bound for one John B. Jones; but in what manner Townsend’s taking up the latter note would benefit Jemison did not appear from any part of the record.

      On the 21st of May, 1842, the suit was commenced by issuing a summons, which was indorsed as follows: •—
    “This action of assumpsit is brought to recover the sum of $ 4,000, with interest at lO per cent., (paid for defendant,) from 27th January, 1840, to Mississippi Union Bank; defendant agreed to pay for plaintiff same amount in the Commercial Bank of Columbus, Mississippi, in consideration that plaintiff would pay same amount for him to the Mississippi Union Bank at Macon; this action is brought to recover said sum of money, defendant having faildd to comply with his promise.
    “Haréis & HarrisOn, Plaintiff's Attorneys.'1'1

    The declaration originally filed was amended, and on the 6th of December, 1842, the amended declaration was filed, which contained three special counts and the general money counts. The first of the three special counts was as follows, the other two being similar in substance,
    “ Robert Jemison, who is a citizen of the State of Alabama, by leave of the court for that purpose first had and obtained,. by attorney, complains of Thomas Townsend, who is a citizen' of the Northern District of the State of Mississippi, and who was summoned to answer the said plaintiff of a plea of trespass on the case in assumpsit. For that whereas, heretofore, to wit, on the 20th day of March, A. D¡ 1840, at, to wit, in said dis-' trict, in consideration that the said defendant was then and there bound, and liable by note in writing, to the Commercial Bank of Columbus, Mississippi, for one John B. Jones, as his security for about the sum of nine thousand eight hundred and six $ dollars, besides interest thereon; and was also indebted to the Mississippi Union Bank, at its branch in Macon, in the county of Noxubee, about the sum of three thousand dollars, on a note of four thousand dollars, executed by the said defendant and others, payable at Jackson, at the banking-house of the said Mississippi Union, Bank, at Jackson ,• and in consideration that the said plaintiff would take up the said last-mentioned note to the Mississippi Union Bank, and would also take up the note of the <said Jones in the Commercial Bank of Co-, lumbus, Mississippi, on which the said Townsend was liable as security as aforesaid, except an amount equal to the amount of said Townsend’s liability to the said Mississippi Union Bank, and release the said Townsend from the balance of his said liability to the said Commercial Bank, he, the said defendant, then and there agreed with the said plaintiff, to pay on his said liability, in the said Commercial Bank of Columbus, Mississippi, the same amount which the said plaintiff might take up for him, the said Townsend, in the said Mississippi Union Bank. And. the said plaintiff avers, that afterwards, to wit,“bn the 10th day of May, in the year 1840, he did take up-the said Townsend’s note, in the said Mississippi Unión Bank above stated, according to the said agreement, amounting to the sum of three thousand and ninety $¡ dollars. Ahd the said plaintiff further avers, that he did then and there, to wit, on the same day ahd year last named, at, to wit, in said district, take up the notes of the said John B. Jones, in the said Commercial Bank of .Columbus, Mississippi, on which the said Townsend was security as aforesaid, according to his said agreement. And the said plaintiff in fact says,” &c., &c.
    The subsequent pleadings were as follows : —
    “ And the said defendant, by attorney, comes and defends the wrong and injury, when, &c., and says he did not undertake or promise in manner and. form as the said plaintiff hath above thereof complained against him; and of this he puts himself upon the country, &c.
    “Co< ke, Smith, & Gholson, for Defendant.”

    “And the plaintiff doth the like.
    “ Harris &• Harrison, Plaintiff’s Attorneys.”
    “And for further plea in this behalf, the said defendant, as to the first, second, and third counts of the said declaration, says, that the said plaintiff ought not to have or maintain his action, because he says that, by an act to prevent frauds and perjuries, it is enacted, that no action shall be brought, whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of any other person, unless such promise or agreement, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, .or some other person by him thereunto lawfully authorized. And the said defendant avers, that the said plaintiff hath brought his action to charge the defendant for the debt of John B. Jones, and for no other purpose whatever; and that there is no agreement in writing touching the promise of the said defendant, as alleged in said counts of said declaration, to answer for the debt of the said John B. Jones, or any memorandum or noté thereof signed by the said defendant, or any other person by him thereunto lawfully authorized. And this he is ready to verify, wherefore he prays judgment, &c.
    “Cocke, Smith, & Gholson, for Defendant.”

    Plaintiff’s replication to defendant’s above-stated pleas, filed at December term, 1842, in the words qpd figures following, 'to wit: —

      “ The' United States of America, District Court for Northern District of Mississippi, December term, 1842;

      “ Robert Jemison ) v. f No.. 108. Thomas Townsend. )
    “ And the said plaintiff, as to the said plea of the said defendant by him secondly above pleaded, saith, that he, the said plaintiff, by reason of any thing by the said defendant in that plea alleged, ought not to be barred from having or maintaining his aforesaid action thereof against him, the said defendant, because he says that he, ..the said plaintiff, hath not brought his action to charge the said defendant for the debt of John B. Jones, and for no other purpose whatever; but that the said action is brought tp charge the said defendant upon his said several original promises and undertakings, founded upon the said several new and sufficient considerations in the said count of said declaration stated ahd set forth; and this he prays may be inquired of by the. country.
    “Harris & Harrison, Plaintiff’s Attorneys.”
    Defendant’s demurrer to plaintiff’s replication, filed at December term, 1842, in the words and figures following, to wit: —
    “ And the said defendant saith, that the said replication of the said plaintiff to the said second plea of the said defendant is not sufficient in. law for the said plaintiff to have or maintain his action aforesaid; and this he is ready to verify; wherefore he prays judgment, &c. Gholson & Smith, for Defendant.”
    In this condition of the pleadings, it appeared by the record that the parties went to trial, when the jury found a verdict for the plaintiff, assessing his damages at$ 3,451.88.
    The trial took place on the 12th of December, 1842.
    An execution was issued upon the judgment, then an alias, a' pluries, and an alias pluries.

    On the 5th of June, 1845, a writ of error was sued out,, which brought the case up to this court.
    It was argtied by Mr. Cocke, for the plaintiff in error. His: argument was as follows.
    This is a writ of error to the Circuit Court of the United»' States for the Northern District of Mississippi. The facts may be briefly stated to be these. Jemison,. the defendant in error,, instituted an action of assumpsit in the court below against Townsend, to recover the sum of three thousand and ninety dollars and forty-one cents, which Jemison paid for Townsend to' the Mississippi Union Bank, upon the agreement of Townsend to pay the same ..¡amount for Jemison to the Commercial Bank of Columbus, Mississippi, upon a note of one John B. Jones, upon which Townsend was indorser for Jones. In the declaration filed at the June term of said court, 1842, thére is a special count, to which is added the usual money counts. There is a demurrer to the special count, — 1st, because there is no legal cause of action set out; 2d, because no legal breach is designated; and to the money counts non assumpsit was pleaded. The court below made no disposition of the demurrer, but gave leave to the parties to amend their pleadings at the next term. Jemison filed an amended declaration, containing three special counts on the above; facts, placing them under different phases, and also adding the usual money counts; non assumpsit was pleaded to the money counts, and to the special counts was pleaded the statute of frauds and perjuries. There was a special replication to the last plea pleaded, to which the defendant demurred, and the court below tried the cause without making any disposition of the demurrer, and permitted the plaintiff below to proceed to final judgment over the demurrer. The case being tried in Mississippi, it is believed the rule governing such cases in that State should prevail. The regularity of these proceedings being the subject of inquiry on behalf of the plaintiff in error, we maintain, — 1st. That the statute of frauds and perjuries pleaded is a full and conclusive defence to the matters alleged in the declaration. 2d. That the demurrer to the replication raised the question of the sufficiency of the matters contained in the whole declaration in law to charge the defendant upon the agreement set out ; and it was error in the court below to have permitted the plaintiff to proceed to final judgment while the demurrer was pending and undetermined. 3d. That the defendant was entitled to his judgment in the court below upon his demurrer. Let us examine, first, the three several counts contained in the declaration. The first count is as follows, in substance: — In consideration that defendant was liable, by note, as security for one John B. Jones to the Commercial Bank of Columbus for about $ 9,806.50, and was indebted to the Mississippi Union Bank about $> 3,000 on a note of $> 4,000, and in consideration that plaintiff would take up said last note to the Union Bank, and would also take up said Jones’s in the Commercial Bank, except an amount equal to the amount of defendant’s liability to the Union Bank, and relieve defendant from the balance of said debt to the Commercial Bank, defendant agreed with, and promised plaintiff to pay, on his, defendant’s, liability to the Commercial Bank, the amount which plaintiff might take up for him, defendant, in the Union Bank; and that plaintiff did take up defendant’s note in the Union Bank to the amount of three thousand and ninety ^ dollars, and did take up said note to the Commercial Bank, and defendant has never paid plaintiff nor the Commercial Bank. To this count the defendant pleaded that the plaintiff’s action was brought to charge him upon a promise to pay him the debt of John B. Jones, and that the statute of frauds and perjuries — How. and Hutch. Miss. Digest, 370, 371 — barred any such action on such promise. To this plea the plaintiff replead, and, by his replication, denies that the count is on a promise to pay Jones’s debt. .To which the defendant demurs, and for good cause; for the defendant’s promise to pay so much of Jones’s debt, contained in the declaration, is clearly a promise to pay the debt of another person, within the statute of frauds and perjuries aforesaid. The replication denies that' the count is brought on any such promise, and thus the replication denies the count itself, and is as good a defence as the defendant could have desired. What better defence could he ask-than that the plaintiff should, by his own pleadings, deny, the cause of action set out in the count ? For this. reason, the demurrer was well taken, and should have been sustained. But again; in support of the demurrer, the plaintiff shows that he himself took up the whole debt to the Commercial Bank, when the contract set out was that he was to take up a part thereof only, and was to leave such part as was equal to the amount paid to the Union Bank by plaintiff, to be paid by defendant to the Commercial Bank. Townsend’s promise was to pay that amount to the Commercial Bank upon Jones’s debt, and not to pay the plaintiff by taking up the whole of Jones’s debt to the Commercial Bank. Plaintiff put it out of defendant’s power to pay the Commercial Bank. He relates the contract set out, and then seeks to recover damages of defendant for a breach which was brought about by his own breach of the contract first committed. Again, it was Jones’s debt that plaintiff took up. Thus, in direct violation of the agreement, Jones was the principal in the note at the Commercial Bank, and, as. such, was, under the statute of this State, first liable directly for the payment of the note, either to the bank or the plaintiff. Townsend being a mere accommodation security for Jones, the bank could not hold Townsend responsible for the money until Jones had been pursued to insolvency; and if the bank cannot, how can Jemi-son hold Townsend responsible, until he first fail to collect it from Jones ? The count shows that Townsend was a mere indorser for Jones, and Jones being first directly liable to pay the Commercial Bank debt, for aught that appears to the contrary he may have paid the plaintiff the whole amount of said note. As th,e plaintiff voluntarily took that amount of, the Commercial Bank debt which, by his contract, he was bound to have left to be paid by the defendant, he.has placed it out-of the power of the defendant to comply; let him seek his remedy on the note, and not bring his action to recover damages for a breach^ which he himself was the cause of. The demurrer was good as to the replication and first count, and yet the plaintiff passed the’demurrer in the court-below unnoticed, and the court permitted Him Jo proceed to judgment without joinder in the. demurrer, and- without making any disposition of it. If .the demurrer was well taken, judgment should have been for the defendant; if not, a judgment of respondeat ouster ought to have been entered by the action of the court; the defendant below could not. take issue on the replication. See How. and Hutch. Digest, 616; Revised Code of Mississippi, 120 ; Walker v- Walker, 6 How. (Miss.) 500., Bright' v. Row- . land, 3 ib. 415; Davis v. Singleton, 2 ib. 6i81; Brown v, Smith, 5 ib. 387. The second count states, that, in consideration that thte defendant was bound to the Commercial Bank, by note, as security for Jones, and was also indebted to the Mississippi Union Bank in the sum of three thousand dollars on a note for four thousand dollars, and in consideration that plaintiff would take up the note in the Union Bank, defendant promised plaintiff to pay same amount on said note in said. Commercial Bank, and plaintiff did take up said note of dtefendant in said Union Bank, and paid the sum of three thousand and ninety dollars; -yet defendant has not yet paid the Commercial Bank on said, note of John B. Jones, on which defendant is liable as aforesaid. To this the above plea was pleaded, also, that the promise declared on was to pay the debt of another, and that the statute of frauds and perjuries aforesaid was a bar. And to said plea plaintiff also, replead, and by the replication denied that the . promise declared on was a promise to pay the debt of Jones; and thus the plaintiff denies his own second count. And thereupon the defendant demurs, as well he might The defendant could have no better defence than the denial of the plaintiff of his own cause oC’-action; and, upon such denial, the defendant rightfully demurred to. any further answer. See the same authorities. Again, has plaintiff ever sustained .any injury, by reason of defendant’s failure to pay Jones’s' debt ? It. is a matter of no moment to plaintiff whether' defendant paid or whether Jones paid, or whether Jones’s debt was paid at all; he shows no affinity between himself and Jones, or, Jones’s debt, whereby the payment would have been an advantage, or the non-payment a disadvantage, to plaintiff. How could the failure, of defendant to pay a debt to Commercial Bank for which he, as the security of Jones, owed said bank, affect. the plaintiff, who was a stranger to said debt ? The Commercial Bank is competent to take care of its own matters; and the declaration does not show that plaintiff was guardian or trustee for said bank, or that he was in any wise interested in the payment. of a debt due to it. If the plaintiff has taken up defendant’s note to the Union Bank, let him sire on the note, and not seek to recover damages When he could' not possibly sustain any, by reason of the non-payment by defendant to Commercial Bank of said note to Jones. The third count states that defendant, in.consideration that he was indebted .to the Union Bank by severaljnptes,- and in consideration that he was liable for John B. Jones to Commercial Bank jfor about f> 9,806.50,-and in consid-' eration that plaintiff would take up any or all of said notes in the Union Bank, agreed, with plaintiff’ to pay to the credit Of defendant’s note in the Commercial* Bank, on which he was security for Jones, whatever sum plaintiff- should pay to the Union Bank in taking up the liabilities of said defendant in the Union Bank; and the plaintiff has taken up defendants liabilities to the Union Bank to the amount of f$ 8,000, and yet. the defendant, has not paid the Commercial Bank same amount of money, but refuses to pay same. If defendant has refused to pay the Commercial Bank, is plaintiff injured thereby ? If he has not paid, he is still bound' to pay ; and whatever he has paid or has not paid, or is bound or is not bound, does not in any wise affect the plaintiff. The Commercial Bank may have. forgiven the debt, or cancelled the notes, or Jones may have paid it; and whether the bank forgave the debt or not, or whether it be cancelled or not, in no wise affects the plaintiff. If defendant had paid the Commercial Bank, as he was already bound to do as the security of Jones, Jemison would not have been any better off; and if defendant has not paid the Commercial Bank, it is the bank’s own affair whether it is ever paid, and to Jemison it matters not whether it is ever paid. The three counts are wholly void of any cause of action; if the plaintiff has paid money for defendant, let him sue for it, but not seek to recover damages for the breach of a promise to pay the Commercial Bank a debt which the defendant was already bound to pay by his promissory note, ándito pay which a promise to Jemison, who was a perfect stranger as to the debt due to the Commercial Bank, creates no new obligation. As to the other counts for money had and advanced, money paid, laid out,, and expended, and for money had- and received, they do not sustain any action, because plaintiff hath appended thereto no bill of particulars, except a promissory note made by defendant and others to the Union Bank. Plaintiff can give nothing in evidence, under the comm.on counts, except what is contained in his bill of particulars. See Statutes of Mississippi, How. and Hutch. Digest, 590. And he cannot give his note in evidence under said count, because it is a note given to the Union Bank by defendant and others, and, by the act of the Mississippi legislature, the bank could not assign this note. See Laws of 1840, p. 16; 3 Smedes & Marsh. 661. Here, by virtue of this law, Jemison could get no such interest in the note as to authorize him to sue him in his own name; for, in fact, no title passed to.him in the note; the note is not negotiable nor assignable or transferable hereby. Then the court could not permit him to practise a fraud upon the law by waiving his action on the note, and use it in evidence to sustain a right of action against the defeñdant, where he holds the note itself in direct. and known violation of the statute; this note is still the property of the Union Bank. There being no bill of particulars filed by plaintiff, except this note, and not being .lawfully possessed of it, it was not properly introduced into the bill of particulars, ahd for the want of such a bill of particulars as the law requites, the common counts in the declaration are wholly void of any right of action; and it was error to admit the note under the money counts; the bank could not assign' the note, because it is against the law of the State. The Supreme Court will reverse a judgment obtained upon a contract entered into in Violation of the statutes of the State. See 2 Peters, 639. Suppose Townsend had paid the note, he is bound to know the law, 'that the bank could not assign his note, and could recover the amount of the debt again of him, if he pays it to plaintiff. See also 4 Peters, 410. We therefore contend that the judgment should be reversed, and judgment rendered for Townsend on his demurrer.
   Mr. Justice WOODBURY

delivered the opinion of the court.

The original action in this case was assumpsit. • Though the declaration contained several counts, some on a- special promise ánd some, for money paid and received, it was indorsed on the original summons, that the action was “brought to recover the sum of $ 4,000 and interest at 10 per cent., paid for defendant, from 27th of January, 1840, to Mississippi Union Bank,” &c., &c.

. There was a demurrer and other pleadings as to this declaration, which it is not necessary to repeat, as leave was given to amend throughout; and on the 6th of December, 1842, a new declaration was filed, consisting of three special counts and the. usual money counts, all of which must of course be for the original cause of action.

On the 9th of December, 1842, the defendant pleaded the general issue of non assumpsit to the whole declaration ; and, for further plea to the three special counts, averred, that the suit was brought to charge him for the debt of John B. Jones, an¿ for no other purpose, and that, there being no evidence of his promise in writing, the suit was barred by the statute of frauds and perjuries. To this the plaintiff replied, that the suit was not so brought, but on original promises made by the defendant. The. latter fiíed a general demurrer, to this replication.

On the 12th of December the general issue , joined as to the whole declaration appears to have been tried, and a verdict returned for $ 3,451.88, for which sum, at the same term, judgment was rendered and execution issued.

Nothing further took place till June 5th, 1845, when. this writ of error'was brought to reverse the judgment, assigning as the ground for it, that the demurrer to the replication should first have been disposed of, and that the statute of frauds pleaded in the preceding plea was a full defence to the matters, alleged by the original plaintiff.

■ This case presents some questions of practice and of pleading which possess no little difficulty. They must be settled chiefly by the reasons which may be applicable to them; and when precedents in this court are not found for a guide in aid of those reasons, they may be strengthened by analogies established in the State courts or in England, where the- systems of pleading and practice are -somewhat similar. It seems proper, and is conceded, that, in a cause where several pleas are filed, as -here, and some terminate in a demurrer and others in an issue to the jury, they should all, as a general rule, unless waived or withdrawn, be in some way disposed of by the court. The leading inquiry, then, is, if enough appears in all the proceedings here to render it probable that the issue, in law no less than in fact, was in some way disposed of, though this is not, eo nomine, mentioned in the record. Assuredly, it is usual in this country, as a matter of practice, when there is an issue of fact and another of law in the same action, to have the question of law heard and decided first. Green v. Dulany, 2 Munf. 518; Muldrow v. McLelland, 1 Litt. 4; Co. Litt. 72. a; Com. Dig., Pleader, Demurrer, 22. The 28th rule for the Circuit Courts accords with this, by directing that, in such cases, the demurrer shall, unless the court shall otherwise, for good cause, direct, be first argued and determined,” because a decision on that, if one way, that is, if in favor of the demurrer, will frequently dispose of the whole cause, and supersede the expense and necessity of a jury trial of the other issue, as well as give an opportunity to move for an amendment. 5 Bac. Abr., Pleas and Pleading, No. 1; Tidd’s Pract. 476; Dubery v. Paige, 2 D. & E. 394. Yet this, course being a matter of sound discretion in the court rather than of fixed or inflexible right, it cannot always be absolutely presumed to have been pursued. See 28th Rule, ante, and cases before cited; 2 D. & E. 394 ; 1 Saunders, 80, note 1. But as it is usual, and the defendant, in this case did not file any exception, as if. there had been a refusal by the court to decide first on the demurrer, the presumption does not seem so strong that there had been a refusal or neglect to do it, as that the demurrer had been waived by the defendant, or, if not waived, had been decided, and the particular minute of this on the record omitted by a-mistake of the clerk. Several other circumstances exist, which, in connection with these, contribute to strengthen this, last presumption, and to justify us on legal grounds in inferring that one of the above events, either a waiver or decision of the demurrer, actually took place here. First, as to those in-favor of the position that the demurrer was waived. Only one cause of' action existed here, though set out in several counts. This is stated , not only, as before mentioned, in the summons by the original plaintiff, but by the defendant in his special plea, and in the argument of his counsel'. The general . issue, which was joined and tried, went to the whole declaration ; and under that, at the trial, any parol evidence offered in its support could have been objected to as within the statute of frauds, which seems to have been the whole defence, as well as under the special plea setting up this statute against the special counts. This is clear from the books of practice. 1 Chit. Pl.. 515; 2 Leigh’s N. P. 1066; 1 Tidd’s Pract. 646. Though, to be sure, it could be pleaded specially, also, and this may now be necessary under the new rules of court in England. 1 Bingh. N. C. 781; 2 Crompt., Mees., &. Rose. 627. Hence, from abundant caution lest this objection might not be admissiblé under the general issue, the special plea here was probably at first' filed. But before the trial came on, which was three days after, it is likely that the defendant had become convinced that it was admissible, under- the general issue, and therefore went to trial without having the demurrer first argued and decided, or even joined, but waived it. If, on the contrary, he concluded to try the issue to the jury first, and then, if not allowed, there to make his objection as to the statute, to argue the demurrer afterwards, the inference would be equally strong, that he was allowed to urge the objection at the trial, and had a de-cisión on it there, and therefore waived his special plea and demurrer, and a separate and unnecessary .decision on them, afterwards. Such was the presumption in the case of Bond v. Hills, 3 Stewart (Alabama), 283, more fully explained- hereafter. It was held likewise in Morrison v. Morrison, 3 Stewart, 444^ that if a demurrer and an issue of fact were to the sanie matter, and the latter was tried first, it mast be presumed that the other had been waived.

■ In Dufan v. Couprey’s Heirs, 6 Peters, 170, a writ of error was brought, for the same general cause as here, that one of the pleas intended for the court did .not appear by the record to. have been decided. But the court sustained the judgment below; the other plea, on examination, as will soon be shown to be the case here, being found immaterial after the finding of the jury. • Where one material -issue is decided going to the whole declaration, it is of no consequence how an immaterial issue going only to a part of it is found, if no injury be done by it to either party. 6 Missouri, 544. And by parity of reasoning, it would be of no consequence whether it was decided at all or not, if enough else is decided to dispose properly of the whole case.

What fortifies these views is the fact, that the defendant never procured a joinder to his demurrer by the plaintiff. As he interposed .this defence in a special plea, and filed the demurrer to the replication, it would be material for him, if wanting a decision on them, to get the pleadings finished.. He should have moved for a joinder, or got .a rule for one, (1 Chit. PI. 628,) and should likewise. have' moved for a decision on them, if desired,.before a final judgment was rendered on the verdict. It is true that some books appear to consider it the duty of the plaintiff to join in a demurrer soon after it has. been tendered by the defendant. But this, it.is believed, generally depends on a positive rule of court, which may exist, to require it. 33d' Rule of Practice for Courts of Equity, 1 How. 43; Williams’s case, Skinner, 217. And without such rule, as in this case, h may need and take time to decide on making á motion . to amend, before joining; and the harshest penalty proper for delay in the joinder would seem to be, that the demurrer may be considered, when requested by the party making it, though no formal joinder has taken place. 3 Levinz, 222; Skinner, 217. . The omission of the defendant, then, to obtain a joinder, to which he was by law entitled, (1 Chit. 647; Barnes, 163,) the omission to add one himself, which is sometimes permissible, (5 Taunt; 164, and l Pike (Ark.), 180,) and the omission to request a decision without any joinder, as he may after much delay, (Skinner, 217,) all appear on the record, and look not only like a waiver of a decision on the demurrer by the defendant, but a neglect of his own duties on the subject. A waiver of a demurrer often takes place, and is, by law, permissible. 1 Tidd’s Pr. 710 1 East, 135 2 Bibb, 12; 1 Burrow, 321; 2 Strange, 1181. Quilibet renuntiare potest jure pro se introducto. The want of a decision would, in this as pect of the subject, seem to be by his own consent; and consensus tollit errorem. The course of the defendant appears to have been, practically and substantially, if not formally, an' abandonment of a wish for any.separate decision on the demurrer. See cases of this kind. Wright et al. v. Hollingsworth, 1 Peters, 165; Bac. Abr., Error, K. 5; Vaiden v. Bell, 3 Randolph, 448; Patrick v. Conrad, 3 Marsh. 613; 2 Marsh. 227; Casky v. January, Hardin, 539. As a plea of the general issue, while a demurrer is pending undisposed of, is considered a waiver of it. Cobb v. Ingalls, Breese, 180.

In another view of the subject, looking to the defendant’s own neglect as the cause, a party cannot be allowed to take advantage of his own wrong or inattention. Thus it has. been decided, that a writ of error will not lie for one’s own neglect or irregularity. 1 McCord, 205; 1 Pike (Ark.), 90; Kincaid v. Higgins, 1 Bibb, 396; 2 Blackf. 71; 3 McCord, 302, 477; Kyle v. Hayle, 6 Missouri, 544. It strengthens these conclusions, that the original defendant seems to have long acquiesced in what he now excepts to, — that he does not appear to have asked for a décision on the demurrer, to have made any complaint at the time of the demurrer not being decided, to have filed any motion about it, offered any bill of exceptions, or even brought any writ of error, till after the lapse of nearly three years. So much as to the waiver of the demurrer. But if the demurrer was not, in truth, waived or withdrawn by the defendant, or cannot be now so considered, from all which appears on the record, the presumption from all is evident, that the demurrer and' special plea were actually decided on by the court, and the omission to enter it on the record may be cured by the statute of jeofails. ' Such a decision would have been its ordinary and proper course of proceeding.

This court has held, in a state of, things much like this, as will soon be more fully explained, that it was bound to presume that “justice was administered in the ordinary form.”" 4 How. 167. And hence, in 3 Stewart, (Alabama,) 447, 448, where a decree was averred in the record, but not its form, it was presumed to have been in the ordinary form. The court could not properly have decided and given judgment for the plaintiff in this case, as it did, and, as must be presumed, properly, in the first instance, if the demurrer had- not been waived or settled in favor of the plaintiff. Nor was the defendant likely to have acquiesced in the judgment without putting an exception on the record, unless one of these circumstances had occurred. This question has arisen in several of the States, and been decided in conformity with these vie ws. In the case of Cochran’s Executors v. Davis, 5 Litt. 129, the court very properly adopt a like principle, saying, — To this plea ther^ was a demurrer, and although there is no order of record expressly disposing of the demurrer, yet, as the court gave judgment for the plaintiff on the whole record, it must be taken that the demurrer was sustained and the plea overruled.” So in substance it was held in McCollom v. Hogan, 1 Alabama, 515; and in Bond v. Hills, 3 Stewart, 283, where, as in this case, there was a plea, amounting to the general issue, or containing what was admissible under it, and it did not appear distinctly to have been.disposed of, but the general issue was tried, it was held to be presumed that the defendant had the full benefit, of the objection on the trial, and error will not lie. It is true that where one issue in a cause is .found one way and another on a matter entirely distinct is not disposed of, it may not be proper always to consider it as decided. Pratt v. Payne, 5 Missouri, 51. But here the questions involved in both issues were the same ; both related to the same cause of action, and both to the same defence. The cases on this subject are so much moré numerous in the States than in England or in this court, that we oftener find it necessary to resort to them for analogies in-support, of our reasoning as to what should, under all the facts, be presumed. But in this court, at this very term, we have a strong illustration of the correctness or truth of such a presumption, in the case of Harris v. Wall; where, on similar findings by a jury on some pleas and a demurrer to others, and a judgment for the defendant without any. entry made specifically that the demurrer was disposéd of, it happens, in point of fact, that it was, decided, and the judge on that circuit, now present, has with him his written opinion, which he delivered when deciding it. So in Stockton et al. v. Bishop, 4 Howard, 167, in a writ of error, where a verdict appeared and a judgment, but not for. any particular sum, with several other important omissions, this court, by Catron, Justice, remarked, —“ Still we are bound to presume, in favor of proceedings in a court having jurisdiction of the parties and subject-matter, that justice was administered in the ordinary form when so much appears as is found in this imperfect record.”

Again, on a writ of error, many things will always be presumed or intended, in law as well as fact, to have happened, which are not ipsissimis verbis or substantively so set out on the record, but are plainly to bo inferred to have happened from what is set out. Cro. Eliz. 467; 4 Howard, 166. Thus, in this case, numerous circumstances stated-on the-record, and already referred to, indicate that the demurrer and special plea, if not withdrawn or waived, were actually disposed of. Among them, raising a strong presumption that way, is the fact, that three days elapsed after the pleas and demurrer were "filed, before the trial of the other issue; that within this period the court had time to hear the question of law argued; that it is the usual practice to hear such a question before going to a trial of the facts; and hence, unless the demurrer was waived, that the court, before the trial, did probably hear and decide the demurrer against the defendant. Again, the court would have been still less likely to have proceeded to final judgment without first disposing of the question of law, unless waived- or settled either before, at, or after the trial. Such, too, being the duty of the court, they are to be presumed, till the contrary appears, to have done their duty. Wilkes v. Dinsman, ante, 89. Nor js such a presumption here, as some, have suggested, against the record; because the record says nothing on the subject. But it is consistent with every thing that is there said, and with what is fairly to be inferred from the whole record, carrying with-us the probable idea, in that event, of some omission or misprision by the clerk in noting all which happened.

The omission of the clerk to enter on-the record the judgment upon the demurrer, or to state its waiver,- if it was abandoned, would be merely a clerical mistake.; and it is well settled at common law, that a misprision by a clerk, if the .case be clearly that alone, though it consist of the omission of an important word or expression, is not a good ground to reverse a judgment, where substance enough appears to show that all which was proper and required was properly done. Willoughby v. Gray, Cro. Eliz. 467; Weston’s case, 11 Mass. 417. The statutes of jeofails usually go still further in remedying defects after verdicts and judgments. Considering this, under those statutes, as a case of defect or want of form in the entry by the clerk, and not of error in the real doings of the court, the statute of jeofails of- the United States, curing all defects or want of form in judgments, is explicit against our reversing this for such a cause. Sec. 32 of Judiciary Act of 1789, 1 Stat. at Large, 91. If the State laws are to govern, the words of the statute of jeofails are equally explicit and more minute in Mississippi, in curing such defects, resembling more the English statutes. Hutchinson’s Code for Mississippi, 841. It is not a little singular, that the unwillingness in England tó have judgments disturbed by writs of error for defects in them or in the prior pleadings, where a verdict of a jury has been rendered for a jfiaintiff, .is such, that something like five or six acts of Parliament were passed before our ancestors emigrated hither, and several more since, to prevent writs of error from being maintained for defects in form, as well as to empower amend-raents in such cases. See those in 1 Bac. Abr., Amendment and Jeofails; O’Driscoll v. Mc Burney, 2 Nott & McCord, 58. Some of the defects cured seem to be very near as strong as the present case. 11 Coke, 6. b; Act of 32 Hen. VIII. c. 30. The difficulty is in deciding “what is substance and .what is form,” and that is governed by no fixed test, but it is laid down that it “ must be determined in every action according to its nature.” 1 Bac. Abr., Amendment and Jeofails, E. 1; 1 Saund. 81, note 1.

At common law, defects in collateral pleadings, or other matters not preceding the verdict, and not to be pfoved in order to get a verdict, were not cured by it. Yet those were cured which related to matters necessary to be shown to get a verdict, and hence, after it, are presumed to have been shown. Renner v. Bank of Columbia, 9 Wheat. 581; Com. Dig., Pleader, Count, c. 87; Carson v. Hood, 4 Dall. 108 ; 1 Sumn. 314 ; 1 Gall. 261 ; 1 Wils. 222; Burr. 17, 25; Cotterel v. Cummins et al., 6 Serg. & Rawle, 348; 1 Sumner, 319; 16 Conn. 586; 11 Wendell, 375; 7 Greenleaf, 63. But these defects in collateral masters, as here, when they relate to form, are as fully cured by the statutes of jeofails as those connected with the verdict are by intendment at common law. Stennel v. Hogg, 1 Saunders, 228, note 1; Dale v. Dean, 16 Conn. 579. Any omission like this would certainly be amendable below, and some cases have gone so far as to hold, in error, that any defect amendable below will be considered as actually amended. Cummings v. Lebo, 2 Rawle, 23.

In conclusion on this point, this court, by Catron, Justice, in the writ of error before named, of Stockton et al. v. Bishop (4 How. 164), stated, that “it must be admitted that Congress acted wisely in declaring that no litigant party shall lose his right in law for want of form; and in going one step further, as Congress unquestionably has done, by. declaring that, to save .the parties’ rights, the substance should be infringed on to some extent, when contrasted with modes of proceeding in the English courts, and with their ideas of what is substance.”

After this, it would seem hypercritical, and contrary to the whole spirit of the statutes of jeofails both of the United States •and of Mississippi, to allow an exception so contrary to legal presumption ás this to be sustained. Nor does it promote the. ends of justice to let parties lie by and not take exceptions, and' afterwards reverse judgments for omissions, which, if noticed at the time, would have been corrected. McCready v. James, 6 Wharton, 547. And this court, where the issues were three,{ and the-verdict and judgment not separate on each, but general' on all, and the objection was taken on the writ of error, in Roach v. Hulings, 16 Peters, 321, said, by Daniel; Justice, — “Objections of this character; .that are neither taken at the usual stage of the proceedings nor prominently presented on the face of the record, but which may be sprung upon a party after an apparent waiver of them by an adversary, and still more after a trial upon the merits, can have no claim to' the favor of the court, but should be entertained- only in obedience to the strictest requirements of law ”; and they were in that cáse accordingly overruled or considered as cured.

Another ground for affirming the judgment, which the plaintiff in er.ror cannot easily overcome, is, that if the three counts to which the special plea is filed cannot be sustained, the defendant in error has obtained a verdict on all the counts; thus showing, at least, that there was no valid defence to the others. And if those three were conceded to be bad, the others are good, and, notwithstanding a verdict and judgment on all, the' latter must not in such case be reversed on error. By an express statute in Mississippi, passed June 28th, .1842, one good count, though others are bad, will sustain a judgment. Hutch. Code for Miss., ch. 5, art. 1. This is not a peculiarity confined to Mississippi, but a like rule prevails in several other States. 2 Bibb, 62; 2 Litt. 100; 2 Bay, 204; 2 Hill, 648; 1 Blackf. 12; 1 Stewart, 384; 2 Connect. 324. And though in some it is otherwise (1 Caines, 347; 11 Johns. 98; 9 Mass. 198), and is otherwise in England (Grant v. Astle, Doug. 703), yet it has been regretted by some of her eminent jurists as inconvenient and ill-judged.”

If this provision, then,’in Mississippi, should be regarded as a rule of practice,'it existed there when the last process act, of May, 1828, passed, and hence, by acts of Congress and. the rules of our Circuit Courts, binds them; but if it be a right conferred by her statute, it equally must govern us, by the Judiciary law of 1789, in all cases tried like this in that State. 16 Peters, 89j 303.

But, beside these reasonings and views, to some- of which a portion of the court except, there exists another ground for affirming the judgment below, which appears to us fully established both on principle and adjudged cases. . The first fault in the pleadings connected with the demurrer seems to have been committed by the defendant himself, and no reason appears on the whole record why the original judgment should not have been rendered against him on that ground. His only defence set up .was the statute of frauds and. perjuries. This statute was pleaded .specially; but, on thé facts and the law, it does not seem to have been applicable - to the case. The case was a transaction of money paid by the plaintiff on account of the defendant, and must have been .considered by the court and jury as done under an original undertaking to repay it in a particular way, which the defendant had not fulfilled, and which was not within the provisions of the statute. The defendant was misled, by the mode of payment being special and to a third person, into an impression that the original promise was to a third person. The suit is not brought by the third person, to whom the original plaintiff owed a debt, nor was the promise made to a third person; but it is brought by the person who advanced money on account of the defendant, on a consideration moving from him alone, and on the promise made to him alone for its payment in a particular manner. See, on this, Read v. Nash, 1 Wilson, 305; 2 Leigh’s N. P. 1031; King v. Despard, 5 Wendell, 277; Towne v. Grover, 9 Pick. 306; Hodgson v. Anderson, 3 Barn. & Cres. 842.

This was virtually, therefore, an undertaking by the defendant to pay his own debt, but simply specifying a particular manner of doing it; and unless it was found at the trial that the statute of frauds did not apply, it is to be presuined that a recovery would not have been had before the. jury, where it was competent to make this an objection.

The matter of the plea, then, having been clearly bad, it appears to be well settled, that, when a demurrer is filed to a replication, if the plea is bad, judgment.ought to be given for the plaintiff. Anon., 2 Wilson, 150; Semble, Moor, 692; Com. Dig., Pleader, Proceedings in Error, 3 B. 16; 1 Levinz, 181. The whole record connected with the demurrer is open on the writ of error, and judgment goes against the earliést fault. Breese, 207; Morgan v. Morgan, 4 Gill & Johns. 395.

In regard to- the suggestion, that the demurrer might have applied to some other objection than the statute of frauds, either in the plea, or, going back to the declaration, some defect there (as the first defect bad on general demurrer is the fatal one, 1 Chit. PI. 647), it is enough to say that no other appears, then or now, to have been pointed out, and none is intimated in the argument for the plaintiff in error.

If is very doubtful, also, if, in this particular case, a defect in the declaration would be considered at all on this demurrer, as the general issue is pleaded to ajl of the declaration- covering these three special counts. And an issue in fact and a demurrer cannot both be allowed to reach the same count.. Bac. Abr., Pleas and Pleading, n. 1; 2 Blackf. 34; 5 Wendell, 104. If there be an exception to this rule, it must be by some local law or practice not' existing here. 1 Litt. 4; 4 Munford, 104.

From the whole record, therefore, it appears that the judgment below in favor of the plaintiff was probably correct, even if the demurrer had not been waived, and in this went it is clear that the judgment should not, on this writ of error, be reversed. Hobart, 56; Com. Dig., Pleader, Demurrer, Q. 2; Saunders v. Johnson, 1 Bibb, 322; 6 Monroe, 295, 606; Phelps v. Taylor, 4 Monroe, 170; Semble, 3 Bibb, 225; McWaters v. Draper, 5 Monroe, 496; Hardin, 164. In Foster v. Jackson, Hobart, 56, the opinion says, “ It is the office of the court to judge the law upon the whole record.” The other cases cited show, that in writs of error, as well as demurrers, the same rule prevails.

The propriety of our conclusions in this case becomes more manifest when we consider that a reversal of the judgment would be of no use to the original defendant; because, if reversed, the order here could not be to render judgment for the defendant, but to have a record made of the waiver or decision of the demurrer, if either occurred, and if not, then a joinder in demurrer and an opinion below on the question presented by it, and which opinion, as already shown, must probably be for the plaintiff, and then the same judgment be entered again on the verdict which exists now. McGriffin v. Helson, 5 Litt. 48; 2 Strange, 972; Jackson v. Runlet, 1 Woodb. & Min. 381.

Finally, so far as any presumptions or doubts on any of these considerations should operate against either party in forming our conclusions, we are unable to see any thing in the acquiescent conduct of the original defendant before the judgment, or in the merits of his original defence, or in his writ of error, brought after such an uninterrupted silence and assent for years, which entitle him to any peculiar favor.

The plaintiff in error, likewise, must always make out his case clearly and satisfactorily, as every reasonable intendment should be in favor of a judgment already rendered. Fentriss v. Smith, 10 Peters, 161; Lander v. Reynolds, 3 Litt. 16; Lou. Code of Pract. 909, note, and cases there cited; 3 Martin (N. S.), 29; 15 Louis. 480, &c. This not having been done in the present case, we think that the judgment below must be affirmed.

Mr. Chief Justice TANEY.

I think the judgment of the District Court may be supported, on the ground (that the decision on the demurrer had become immaterial after the verdict on the general issue. The special plea out of which the derpurrer arose applied only to three, counts. There was a fourth count, to which no defence was made except by the plea of the general issue; and according to the law and practice of Mississippi, one good count is sufficient to support the judgment when there are several counts in a dec- ■ laration, and the others'bad. And after the verdict on the general issue, the decision of the demurrer was immaterial, and the judgment must still have been for the plaintiff even if the demurrer was decided for defendant. The omission to dispose of an immaterial issue is.not a ground for reversing a judgment, as the decision of such issue could not influence the judgment of the District Court. But I do not concur in the other portions of the opinion, and think that many of the positions taken in it cannot be supported.

Mr. Justice CATRON concurs with the Chief Justice.

Mr. Justice DANIEL.

Regarding the opinion just delivered as in direct opposition to the very canons of pleading at law, I feel constrained to declare my dissent from it. I cannot subscribe to, and can hardly comprehend, k doctrine of presumptions, which, in proceedings at law and on questions of pleading, infers that the parties or the court have acted in direct contravention of the facts apparent upon, and standing prominently out upon, the record, operating by such presumption a false feature of the record itself; In this case the defendant has tendered an issue in law to the replication to the third plea; the record discloses the fact, that this issue has never been tried ; it is therefore undeniable that there is a chasm jn the proceedings, and that the court has not passed upon the whole case. If presumption can be admitted to warrant the conclusion that this demurrer was withdrawn, where shall such presumption end? Would it not be equally, regular to presume that any other plea or issue on the record had been withdrawn ? Then, if any other source than the record itself can be resorted to in order to ascertain what was in truth involved in the tral, conjecture or evidence aliunde must be introduced to determine; add that which, by legal intendment, is the only evidence or proof of the proceedings, the record, becomes the weakest of all proof, or rather becomes no proof at all. I think the judgment should be reversed, and the cause remanded for a trial on all the issues of law aiid of fact.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the. Northern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said District Court in this cause be, and the same is hereby, affirmed, with cósts, and damages at the rate of six per cent, per annum.


author: Mr. Chief Justice TANEY

text:
    William Hardeman and Henry R. W. Hill, Complainants, v. Benjamin D. Harris.
    If an exception be taken to an answer in chancery upon the ¡pound that certain allegations in the bill are neither answered, admitted, nor denied, it becomes ne- ■ cessary to inquire whether the facts charged in the allegations are material, and might, if established, contribute to support the equity of the complainant.
    If they will not, the omission to answer the allegations is not a good ground for exception to the answer, and the exception must be overruled.
    Therefore, when a bill charged that certain notes were given for the purchase of slaves introduced into the State of Mississippi, as merchandise and for sale, after the first day of May, 1833, and the answer omitted to notice the allegation, such omission was not a good ground for an exception.
    This court has repeated!y decided that the fact stated is no defence to a suit at law. Still less can it be a defence in equity.
    Where an allegation in the bill was, that the complainants were only sureties, and that their principal was insolvent, the answer was not justly subject to exception for omitting to notice it. The fact in no way strengthened the equity of the complainants.
    This case came up from the Circuit Court of the United States for the Southern District of the State of Mississippi, on a certificate of division in opinion between the judges thereof.
    The facts in the <,áse. are sufficiently set forth in the opinion of the court.
    It was argued by Mr. Nelson, on behalf of the respondent, Harris; no counsel appearing for the complainants.

      Mr. Nelson contended that neither of the exceptions was well taken.
    The first, because the allegation to which it refers was wholly immaterial, and not therefore required to be answered.
    The second, because the allegations therein referred to, contained in said bill, if at all material, which is denied, have been substantially responded to by said answer.
    In support of the first proposition it is submitted, — —
    That to justify an exception- to an answer in chancery upon the ground of insufficiency,. it is necessary to show that the omission alleged is material to the purpose and object of the complainant’s bill. 2 Dan. Chan. Prac. 261Welford’s Equity Plead. 368; Hare on Disc. 160; 1 McClellan & Younge, 334. In Hirst v. Peirce, 4 Price, 136, (2 Eng. Exch. Rep.,) Chief Baron Richardson says : — “ There is great mistake in general in this court as to what is a material exception. The true way of arguing and considering such an exception is by ascertaining whether, if the defendant should answer in the affirmative, his admission would be of use to the plaintiff. If it would, it must be answered; if not, it is not material.”
    And in Bally v. Kenrick, Í3 Price, 294, (6 Eng. Exch. Rep. 99,) Sir William Alexander, Chief Baron, says: — “ The materiality of the exception wi11 depend on this, —whether the interrogatory be of such a nature, without reference to . the objectionable part of the answer, as that the answer to it might, if it were answered simply as it is put, so far contribute to supr port the equity of the plaintiff's case as to- contribute to induce the Court to give him the relief sought bythe bill.” .
    This being the clear and well-settled rule, it remains to inquire, whether the omission referred to in this exception- be material to the object of the complainants’ bill.
    That it is not is unquestionably clear. Groves v. Slaughter, 15 Pet.-449; Harris v. Runnels, 5 How. 135; Truly v. Wanzer et al., 5. How. 141; Sims v. Hundley, 6 How. 1.
    In support of the second proposition in the defendant’s brief, it is insisted, —
    That the omission alleged in the complainants’ second exception does not in fact exist to the extent therein stated, and if it did, it is wholly immaterial.
    That Hardeman, .one of the complainants, was a mere' surety in the- note ued upon at law, is substantially admitted by the defendant, and will be apparent upon the examination of .the answer, wherein he states the sale of slaves, for which the note was given, to have been originally made'to James M. Smith, on. credit, and that he “ received in payment therefor the notes or bonds of said James M. Smith and of the said William Har-deman.” That upon one of said bonds or notes a judgment was obtained, as stated in the bill, and. that the note or bond sued on, upon which the judgment enjoined was recovered, was. given in satisfaction of the first-mentioned bond or note and judgment.
    Now all that is necessary for a defendant to do, in a case like the present, is to answer substantially the allegations of the bilL Welford’s Equity Pleadings, 261.
    As to the objection, that the allegation of the insolvency of James M. Smith’s estate is not answered by the defendant, it is sufficient to say that the fact is nowhere so alleged in the. bill as to require any answer. There is. no such averment in the bill, the only suggestion being that “ it seems that nothing can be found,” &c.
    But if it were otherwise, it is indisputably clear that the allegations are wholly immaterial; that, however answered, the complainants could not be aided in the purpose of their bill; and that therefore, upon the authority of the cases already referred to, the omissions furnish no sufficient grounds for an exception,
   Mr. Chief Justice TANEY

delivered the opinion of the court.

In this case, the. complainants filed a bill in the Circuit Court for thé Southern District of Mississippi, praying a perpetual injunction agaitist a judgment at law which had been obtained against them. The bill, among other things, states that the note upon which the judgment was awarded was given for the purchase-money of certain slaves brought by the defendant into the State of Mississippi, as merchandise and for sale, after thé first day of May in the year 1833, and sold in.the State to a certain James Mi Smith, in violation of the • constitution and laws, of the State; that the complainant Hardeman was surety for Smith; that a judgment was afterwards obtained against him, and an execution issued and levied upon his property, and that, to prevent it from being sold, he executed a forthcoming bond' with the other complainant, Hill, as his security, which bond had become forfeited, and therefore had the form and effect of a judgment against the complainants; and that Smith, for whom he was security, was dead, and his estate insolvent;

The defehdant answered; and upon ¿he coming in of the answer, the following exceptions were taken to it by the complainants : —

“ 1st. The bill charges that the slavés mentioned in complainants’ bill, sold by the defendant, Harris, to James M. Smith, and which constitute the consideration of the rióte upon which the judgment at law enjoined in this cause was rendered, were introduced into the State of Mississippi by the said defendant, Harris, for sale and as merchandise, after the first day of May, 1833. This allegation has not been answered, admitted, or denied. .
“ 2d. It is alleged in jthe bill, that complainant Hardeman was only surety in the note sued upon at law, and that C. P. Smith, executor of James M. Smith, was principal, and that the estate of Jannes M. Smith is insolvent, &c. These allegatiohs are neither.answered, admitted, nor denied.”

And upon the hearing of these exceptions, the judges were di-> vided in opinion upon the point whether they were well taken and should be sustained, or not, and therefore ordered the question, to be certified for decision to this court. .

It is very clear that neither of these exceptions can be maintained. It has been repeatedly decided in this court, that the fact stated in the first is no. defence at law, and still less can it be a ground of relief in equity after, a judgment at law.

And as regards the second, certainly the insolvency of the-principal debtor is no defence to the surety, either at law or in equity:. -

If, therefore„.the defendant had admitted in the most explicit terms the allegations mentioned in the exeéptions, they would not have contributed in any. degree to support the claim of the complainants ?to the relief they ask. And consequently, the omission tp answer (if the answer be open to that objection) furnishes no ground of exception. It is not a sufficient foundation for an exception, that a fact- charged in a bill is not answered, unless the fact is material, and might contribute to support the equity of the case of the complainant, and induce the court to give the relief sought by the bill.

The exceptions ought, therefore, to have been overruled, and we shall direct it to be so certified to the Circuit Court.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the- United. States, for the Southern District of Mississippi,, and on the points or questions on which the judges of the said Circuit pourt were opposed in opinion, and which were certified to this court, fór its opinion, agreeably to the act of. Congress in such case made and provided, and was argued by counsel. On’ consideration ’whereof, it is the opinion of this court, that the exceptions by the complainants were not. well- taken, and ought-to- have been overruled. Whereupon, it'is now here ordered and decreed, that it be so certified to the. said Circuit Court. - ..