author: Mr. Justice McLEAN

text:
    John C. Paige, Plaintiff in error, v. Martha A. Sessions.
    The decision of this court in the case of Price t>. Sessions (3 Howard, 624) reviewed and confirmed.
    This case was brought up,-by writ of error, from the Circuit Court of the United States for the Southern District of Mississippi.
    The facts in the case bringing it within the principles of the case of Price ». Sessions, decided at the last term of this court, Mr. Crittenden, on behalf of the defendant in error, submitted it without argument.
   Mr. Justice McLEAN

delivered the opinion of the court.

This writ of error brings before us a case from the Circuit Court for the Southern District of Mississippi.

At May term, 1840, a judgment was obtained by the plaintiff against J. R. 'Brown, James Magee, and E. J. Sessions, for two thousand two hundred and sixty three dollars, on which judgment an execution was issued the 12th January, 1842, which was levied on a large amount of personal property, supposed, as stated in the return of the marshal, to belong to E. J. Sessions. A part of this property was claimed by Martha A. Sessions, the wife of E. J Sessions, as devisee of Russel Smith, deceased. A bond being given by the. claimant, and pleadings being filed, under the statute of Mississippi, the right of property was submitted to a jury, who found the title to it in the said Martha, and that it was not subject to the above execution ; on which verdict judgment was entered. On the trial, a bill of exceptions was filed by the plaintiff, in which was set out the record of the original judgment and execution, the .will of Russel Smith, and the probate of the .same, the inventory and appraisement of the property of the deceased, and other evidence. It is unnecéssary to state this evidence in detail, or to consider the legal questions which were raised in the case, as, on the same state of facts, the same legal questions were considered and decided at the last term of this court, in the case of Price v. Sessions, 3 Howard, 624. The rulings of the court in that case were sustained, and the judgment was affirmed ; and the judgment in this case is also affirmed, with costs.


source: Caselaw Access Project

author: Mr. Justice NELSON

license: Public Domain

text:
    Daniel Garrard, Plaintiff in error, v. Lessee of Henry Reynolds et al.
    In an action of ejectment, where two of the plaintiff’s lessors were married women, and the demise was laid in the declaration to have been on the 1st of January, 1815, it was necessary to establish to the satisfaction of the jury, that the marriage took place before that day, inasmuch as their husbands were stated to have joined in the demise.
    Two depositions, taken in 1818, were given in evidence, one of which stated the death of the father of the women to have taken place “ upwards of twenty yean ago,” and the other “ about twenty-eight years ago.” Both of the depositions, when enumerating the children of the deceased, mentioned the fact of the marriage, without saymg when such marriage took place.
    In giving its instructions to the jury, the court remarked that “ the depositions should be favorably construed.” After retiring, the jury returned into court and inquired what was meant by the instruction that the “ depositions should be favorably construed,” when the court informed them, that “ where a suit was brought by A. and B. as man and yvife, and a witness proved them man and wife shortly after the suit was brought, without proving the time at which they were intermarried, it might well be inferred that they were man and wife when the suit was instituted; and if there was an ambiguity in the deposition of William Rawle (the witness), it was in the power of the jury to find that the two femes covert had intermarried before the 1st of January, 1815.”
    The jury were further told, that “ the depositions had been referred to the court, on a motion, on the part of the defendant, for a nonsuit, for want of proof of heirship and intermarriage of the daughters of Reynolds, at the date of the demise, 1 January, 1815; qpd that it seemed to the court that William Rawle (the witness) .referred to the persons who were the heirs of Reynolds at the time of his death, and not at the time the deposition was taken, and refused the non-suit; but the jury were not bound by the construction given by the court, and could give thé deposition any construction they saw proper.”
    No exception having been taken to the opinion of the court overruling the motion for a nonsuit, the question whether, as matter of law, there was any evidence to be submitted to the jury, going to establish the intermarriage at or before the time of the demise laid in the declaration, was not before this court.
    And in the submission to the jury óf the question of fact, whether or not the evi- . dence proved the marriage before that time, there was no interference with the
    Íirovince of the jury, or violation of any rule of law, the question having been eft open for their finding.'
    There was, therefore, no error in the proceedings of the court below. '
    The facts in this case are set forth in the opinion of the court.
    The case was a.gued by Mr. Crittenden, for the plaintiff in error, and Mr. Morehead, .for the defendants.
   Mr. Justice NELSON

delivered the opinion of the court..

This is a writ of error to the Circuit Court of the United States for the District of Kentucky, bringing up for review certain instructions given to the jury on the trial of an afction of ejectment, brought by the defendant in error against the plaintiff in error, arid in which .the former obtained the verdict.

The action was brought to recover possession of a large tract of land situate and lying in the State of Kentucky, to which the lessors of the plaintiff claimed title as the heirs of James Reynolds, the original patentee of the tract.

Two of them were daughters of the patentee and .femes covert, with whom their husbands, Cutbush and Reese, had joined in the action, arid the demises in the several counts in the declaration were laid jointly and not severally, and were of the date of 1 January, 1815.

‘ Several questions of law were raised by the counsel for the defendant below, in the course of the trial, and were disposed of by the court, and exceptions taken, but as they have not been relied on here as grounds of error, it is. unimportant to notice them more particularly.

The suit was commenced in the latter part of December, 1815, and continued from term to term, until the November term of the court in 1842, when it was tried, and a verdict found for the plaintiff.

Among other testimony introduced on the part of the lessors of the plaintiff to establish their title to the tract, and right to recover ■ the possession, were the depositions of William Rawle and Thomas Cümpston, both of the city of Philadelphia, duly taken before a competent officer, in May, 1818, the material parts of which are as follows.

William Rawle deposed, “That he was well acquainted with James Reynolds, late of the city of Philadelphia, carver and gilder, who lived many years in a house belonging to the wife of ' this affiant, as a tenant, in the city of Philadelphia ; that, to the best of this affiant’s recollection arid belief, the said James Reynolds left five children at the time of his death, which was upwards of twenty years ago. The names of the children■ living at the time of his death were James, Henry, Anne, and Elizabeth, one of whom married Edward Cutbush, and the other James Reese, and Sarah, who, as far as affiant’s knowledge extends, was not married ; and this deponent believes the said James, Henry, Anne, Elizabeth, and Sarah were the heirs at law of the said James Reynolds, deceased.”

Thomas Cumpston deposed, “ That he was acquainted with James Reynolds, late of the city of Philadelphia ; that he died about twenty-eight' years ago ; that he left two sons, to wit, James Reynolds and Henry Reynolds, and three daughters, to wit, Anne Reynolds, now married to Edward Cutbush, Elizabeth, now married to James Reese, and Sarah Reynolds, whom this deponent believes to be1 the heirs at law.” •

When the testimony closed, the following among other instructions were prayed for by the counsel for the defendant, namely, — “ That the plaintiff cannot recover on the demise of Cutbush, unless the jury shall find from the evidence that he was married to the daughter of the said patentee, Reynolds, on or before the date of his demise, to wit, the 1st January, 1815 ; nor can the plaintiff recover, on'the demise of Reese, unless they shall find he was married to another daughter of the said patentee, at or before the same day ; nor can the plaintiff recover on any of the demises in the declaration, unless the jury shall find from the. evidence that the lessor, James Reese, was married as aforesaid, on or before 1 January, 1815 (he having joined in the demise as laid in each of the several counts in the declaration).”

The record further states, that the instructions thus prayed for on the part of the defendant were given, “ but the court remarked to the jury, that the depositions should be favorably construed.”

After the cause was thiis submitted upon this bránch of it, the jury returned into court, and inquired “ what was meant by the instruction, ‘ but the depositions should be favorably construed,’ when the court informed them, that where a suit was brought by A. and B., as man and wife, and a witness proved them man and wife shortly after the suit was brought, without proving the time at which they were intermarried, it might well be inferred that they were man and wife when the suit was instituted ; and if there was an ambiguity in the deposition of William. Rawle (the witness), it was in the power of the jury to find that the two femes covert had intermarried before the 1st January, 1815.”

The jury were further told, that the depositions had be'en referred to the court, on a motion on the “part of the defendant for a nonsuit, for want of proof of heirship and intermarriage of the daughters of Reynolds at the date of the demise, 1 January, 1815 ; and that it seemed to the court , that William Rawle, the witness, referred to the persons who were the heirs of Reynolds at the time of his death, and not at the time the deposition was taken, and refused the nonsuit; but that the jury were not bound by the construction given by the court, and could give the deposition any construction.they saw proper.”

This is the substance of the case, as presented on the record, so far -as the questions before us are involved, and upon which we are called upon to decide.

The counsel for the plaintiff in error contends, that the testimony of Rawle and Cumpstpn, as detailed in their depositions, and which is alone relied on by the defendants in error as proving the intermarriage of Anne and Elizabeth, two of the heirs of the patentee, with Cutbush and Reese, refers, and upon a fair construction should be limited, to the time when they were (aken, "to wit, the 4th and 2d May, 1818, and cannot be properly regarded as referring to the time of the demise laid in the declaration, to wit, the 1st January, 1815 ; and that if so, then the testimony did not lay a sufficient foundation to warrant the inference or presumption by the jury of the fact of intermarriage at the latter date, which, fact is essential to maintain the action.

Whefeas, the counsel for the defendant in error insists that one or both the depositions are open to a construction that affords direct proof of the intermarriage as far back as the time of the death of the patentee, and, of course, before the date of the demise ; or, if not direct proof, that the testimony, at least, is sufficiently full and-comprehensive to authorize the jury in finding the intermarriage as a conclusion of fact as early as that date.

These are substantially the adverse positions held and maintained by the respective counsel upon the poiiit in question between them.

This court is not called upon to expre'ss an opinion, whether, as matter of law, there was any evidence to be submitted to the jury, going to establish the intermarriage at or before the time mentioned ; ’ because, although this ground was taken by the counsel in the course of the trial below, on a motion for a nonsuit, and was overruled, no exception was taken to the decision. The point, therefore, is not before us.

Both parties there assumed, that the inference or presumption of intermarriage or not at the date of the demise was one-of fact, depending upon. the weight of the evidence? such as it was, and belonged properly to the province of the jury, and should be submitted to them. And the only question, therefore, here is, whether the court, in their instruction on the submission of the case to the jury, violated any rule of law, for which error will lie.

We have, accordingly, examined the instructions given on -this aspect of the case with attention, and are satisfied, that, upon the strictest analysis to which they may be properly subjected, there is no well founded objection to-them.

It is true, after advising the jury in accordance with the prayer of the defendant below, that it was necessary for the plaintiff to establish the intermarriage at the time of the demise, in order to entitle him to the verdict, the court added, that the depositions given in evidence for this purpose should be favorably construed. But if we were to concede any thing exceptionable in this mode of construing the depositions, the error was sufficiently explained and corrected when the inquiry was made by the jury as to the force and effect .to be given to the observation of the court. In effect, they were then told that the depositions, especially Rawle’s, left the question at issue open for their consideration, depending upon the weight to be given to the facts therein testified to, and upon which it was competent for them to find for the plaintiff; -which, in judgment of law, was nothing more than the assertion of a right in the jury that had already been .virtually implied in the case from the" concession of both parties, that the question belonged to that tribunal to determine, according to their view of the evidence.

Indeed, instead of improperly, interfering with the province of the-jury, the court seems to have been particularly guarded against leaving any undue impression upon their minds as to the weight and effect of the evidence from opinions that had fallen from it in the course of the trial. For, after referring to the view taken in their hearing on the motion for a nonsuit, in which the court were obliged to express an opinion as to the tendency of the evidence on the depositions, the jury were expressly advised, that they were not bound by the construction given by the court, but could give such construction as, in their judgments, the facts would warrant.

Even if an opinion had been expressed, in the course'of submitting the case, more pointedly, as to the bearing and tendency of the evidence, than is to be found in this case in the record, after the jury were advised, that they were not intended as instructions, or to be binding upon them, — that the question was one of fact and construction, which they must consider and determine for themselves, — we are not aware of any ground of reason or authority upon which error could be predicated for an interference with the rights of the jury, but the. contrary.

.The cases of Evans v. Eaton (7 Wheat. 426), and Carver v. Jackson, ex Dem. of Astor and others (4 Peters, 80, 81), need only be referred to in confirmation of the position.

We are of opinion, therefore, that the judgment of the Circuit Court should be affirmed.


author: Mr. Justice CATRON

text:
    Gerard C. Brandon, Plaintiff in error, v. Ralph W. Loftus and Floyd Whitehead, Defendants.
    Under the statutes of Mississippi, providing for the admission of the evidenee of a notary public with regard to a protested note, directing the form of .proceeding which the nótary shall pursue, and providing further thát justices of the peace may, in certain cases, perform the duties of notaries public, it was proper to read in evidence the original paper, of the acting notary, although the record was made out at a time subsequent to that when the protest was actually made.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Mississippi.
    It was an action brought by the indorsee against the indorser of a promissory note, under the following circumstances.
    On the 12th of December, 1838, the following note was executed : —

      Fort Adams, December 12th, 1838.
    On the first day of-January, A. D. 1841, wfe jointly and severally promise to pay Gerard C. Brandon, or order, the sum of two thousand six hundred and sixty-seven dollars, value received, without plea or offset, payable and negotiable at the Planters’ Bank of the State of Mississippi; at Natchez.
    (Signed,) WILLIAM C. COLLINS,
    JOHN C. COLLINS.
    (Indorsed,) “Gerard C. Brandon,” “ Loftus & Whitehead.”

      The note was passed by:the indorser, Brandon, to Loftus and Whitehead, who were citizens of Virginia. It fell due upon the 4th of January, 1841, and was not paid. In February, 1841, Loftus and Whitehead brought a suit against Brandon, and the cause cams on for trial in June, 1842. Upon the trial, the plaintiffs offered in evidence the following paper, which was objected to by the defendant ; but being admitted, the^ defendant took a bill of exceptions, which is the only one in the record, viz. : —
    The plaintiff then, without any. further proof, offered to read to the jury, as evidence of the protest of said note, and to show notice, a certificate of James K. Cook, which was contained in a loose, detached piece of paper, partly written and partly printed, which certificate is in the words and figures following, to wit: —
    State op Mississippi, Adams county :

    I, James K. Cook, justice of the peace and ex officio notary public in and for said county, residing in the city of Natchez, qualified according to law, do hereby certify that, on the 4th day óf January, in the year 1841, I went to the Planters’ Bank of the State of Mississippi, in Natche z, and then and there presented for payment the original note, of which the following is a true copy, together with the indorsements on the back of said note : -

      Fort Adams, December 12th, 1838.
    ' On the first day of January, A. D. 1841, we jointly and severally promise to pay'Gerard C. Brandon, or order, the sum of two thousand six hundred and sixty-seven dollars, value received, without plea or offset, payable and negotiable at the Planters’ Bank of the State of Mississippi, at Natchez.
    WILLIAM C. COLLINS,
    JOHN C. COLLINS.
    (Indorsed,) 11 Gerard C. Brandon,” “ Loftus & Whitehead.”
    And I then and there. demanded,payment of the said note according to its tenor and effect,- and was answered by the teller of the said bank that the said note would not be paid, and that no funds were deposited in said bank for that purpose ; and the said.note was not paid by any person when payment thereof was demanded as aforesaid. Whereupon I protested said note for nonpayment, and notified the parties thereto of said demand, nonpayment, and protest, and that the holder of said note looked to them for payment thereof, which notices were given at the times, and addressed to and directed in the manner'following, to wit: —To Gerard C. Brandon, at Fort Adams, Miss. To Gerard C. Brandon, at Pinckheyville, Missi To Gerard C. Brandon, at Woodville, Miss. To W. C. and J. C. Collins, at Concordia, Louisiana.
    All of which notices, directed to the parties respectively as aforesaid, were placed by me in the post-office at Natchez in time to go out by the first mail of the day next succeeding that on which said note was protested as aforesaid.
    Which facts constitute, as herein set forth, , a full and true record of all that was done by me in the premises.
    In testimony whereof I have hereunto set my hand and affixed [l. s.l my official seal this 27th day of January, 1841.
    JAMES K. COOK, J. P. Notary,

    State op Mississippi, Adams county:

    Personally appeared before the undersigned justice of the peace for the county aforesaid, James K. Cook, a justice of the peace and ex officio notary public,, whose name is signed to. the foregoing, and made oath that the same is a true statement, in substance and in fact, of his official acts arid doings altogether in relation to the premises. JAMES K; COOK.
    Sworn to and subscribed before me, this 27th day of January, 1841. M. ROBETAILLE, J. P.
    To ffie admission of which as evidence to the jury the counsel of defendant objected, but the court overruled the objection, and permitted said certificate to go to the jury as evidence of its contents ; to which decision of the court, in then and there admitting said certificate, and permitting it to be read in evidence, the counsellor the defendant excepted, and reserved his exception. He therefore prays that this his bill of exceptions may be signed, sealed, and .made a part of the record ; which is done accordingly.
    j. McKinley, [seal.]
    To review this decision of the Circuit Court, a writ of error brought the case up to this court.
    It was argued by Mr. Mason (Attorney-General), for the plaintiffin error, and Mr. Robert J. Brent, for defendants.
   Mr. Justice CATRON

delivered the opinion of the court.

The only question in this case is, whether a notarial act of protest was prbperly admitted in evidence to fix an indorser on a negotiable note payable in bank.

The statute of Mississippi (H. & H. Digest, 609, sec.. 33) provides, that in all cases where it may be necessary to have the testimony of a notary public in any suit touching a protested note, bill of exchange, or other instrument, the official act of such notary, certified under his hand and attested by his notarial seal, shall be deemed, held, and taken to be conclusive evidence of the protest of such note, bill, or other writing offthe day it purports to have been made ; and the notary shall not be required to go beyond the limits of the county of his residence to give evidence of the facts. The foregoing provision declares the force and; effect of the instrument.

And then, the statute prescribes its form. When a notary shall protest an instrument, he shall make and certify on oath a full and true record of what shall have been done thereon by him in relation thereto", according to the facts, by'noting thereon whether demand for the sum of money mentioned in the same wias made, of whom, and where ; when the requisite notice dr notices wére served, and on whom ; whére the same were mailed, if such be the case, when mailed,, to' whom and where directed ; and every other fact in any manner touching the same shall be distinctly and plainly set forth in the notarial record .; and when so made out and certified, it shall have the same validity, force, and effect in all courts of record in that State, as if the notary were personally present and interrogated in court.” ■

Justices of the peace are authorized to perform the duties of notaries, in particular instances, by another statute of Mississippi; and this, notarial act was made by a justice of the peace.

The note on which the protest was founded was due the 4th of January, 1841, payable and negotiable at the Planters’ Bank, at Natchez; made by William p. and John C. Collins, to Gerard C. Brandon, and indorsed by him ; and who is the plaintiff in error, and was the defendant'below. Three duplicates of notice are stated to have been sent by mail to Brandon to different places. An objection was made in the Circuit Court to receiving the notarial act in evidence for any purpose; becatise it purports to bé a récord, original and of itself; and not a copy of a record from the notary’s book ; which, it is insisted, it ought to be, and could only be.

After setting forth the facts of demand at. the bank, and the answer of the teller, that the note would not be paid, because no funds had been deposited for such purpose, and that a formal protest for nonpayment had been made, ..and also the fact of forwarding the notices, the notary says, — Which facts constitute, as herein set forth, a full and true record of all that was done by me: in the premises.” To this is affixed the notarial seal, signature, and affidavit, of the notary.. It was done on a separate paper, partly printed and partly written ; and offered in evidence as a record of the notarial act within the meaning of the statute above recited.

In our opinion, the legislation of Mississippi is distinct and certain ; it had reference to the usage of notaries public generally, when making protests and giving notices; that usage we understand to be, for the notary to make the demand and give the notice, and after doing so, to write out the facts in his memorandum-book, or to preserve them otherwise ; and from these facts the record contemplated by the statutes is made up ; and So it was done in this instance, both in substance and form. To the paper having the official seal and affidavit of the notary attached, the légíslature refers ; and not to any previous writing.

It is supposed the case of Fleming v. Fulton (6 Sto. Mi. Rep. 473) gives a different construction to the statute. The objection to the record of protest there wás, that it had not been made out and sworn to at the time the protest was made ; and such is the fact in the case before us ; but the court held that the record might well be made subsequently, and .this for reasons, as we think, too obvious to require explanation. Nor do we understand either of the remarks made by the High Court of Errors and Appeals of Mississippi in any degree impugned by our construction of the statute. The judgment is therefore ordered to be affirmed, with costs.


author: Mr. Justice WOODBURY

text:
    Hugh A. Garland, Plaintiff in error, v. George M. Davis, Defendant.
    This was an action on the case, brought by Davis against Garland, the former clerk of the House of Representatives. The declaration set out, by way of inducement, a contract between Davis and Franklin, the predecessor in office of Garland, and then charged upon Garland a wrongful ana injurious neglect and refusal to furnish a copy of certain laws to Davis, as had been agreed by Franklin.
    The plea was “ non assumpsit,” and the issue and verdict followed the plea.
    This court can notice a material and incurable defect in the pleadings and verdict, as they are.represented in the record to have existed in the court below, although such defect is not noticed in the bill of exceptions, nor suggested by the counsel in argument here.
    When a declaration sounds in tort and the plea is “ non assumpsit,” such a plea would be bad, on demurrer. If not demurred to, and the case goes to trial (the issue and verdict following the plea), the defoct is so material that it is not cared by verdict, under the statute of jeofails.
    Bad pleas, which are cured by verdict, are those which, although thev would be baa on demurrer because wrong in' form, yet still contain enough of Substance to put in issue all the material parts of the declaration.
    The provision by Congress, in relation to amendments, which is found in the 32d section pf the Judiciary Act of 1789, is similar to that of 32 Hen. 8, but certainly not broader.
    The issue'was an immaterial issue.
    The opinion of this court in Patterson v. The United States, 2 Wheaton, 221, reviewed and reaffirmed, namely, — “ Whether the jury find a general or a special verdict, it is their duty to decide the very point in issue, and although the court in which it is tried may give form to a general finding, so as to make it harmonize with the issue, yet if it appear to that court, or to the appellate court, that the finding is different from the issue, or is confined only to a part of the matter in issue, no judgment can be rendered on the verdict.”
    This principle applies equally to a plea varying from thé substance of the declaration.
    In this case, the verdict does not find any of the- misfeasance charged upon the defendant.
    If the merits' of the case were passed upon in the court below, it was illegally done, because no evidence was competent except such as related to the promise described in the declaration.
    This court abstains from awarding a repleader, for the reasons stated in the opinion, but remands the case so that the pleadings may be amendéd.
    This case was brought up, .by writ of error, from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Washington.

      It was an action on the case, brought by Davis, the defendant-in error, against Garland,' the clerk of the House of Representatives.,
    The circumstances under which the suit was brought are thus set forth in the plaintiff’s declaration, which was filed on the 16th of September, 1839.
    “District of CotUMBiA,

      Washington county, to wit:—
    “ Hugh A. Garland, late of said county, was attached to answer to George M. Davis, in a plea of trespass on the case, and so forth. And whereupon the said Davis, by H. M. Morfit, his attorney, complains, that whereas the House of Repiresentatives of the United States had, at the first session of the 25th Congress, which was before the committing of the grievances herein complained of, passed, a resolution that the clerk of said House be, among other things, directed to caus to he printed a ninth volume of the laws of the United States, after the manner of the eighth volume thereof; and being so directed, in pursuance of such resolution the then clerk of said House, to wit, Walter S. Franklin, in the month of July of the year 1838, at the county aforesaid, had employed the said plaintiff, and, in his capacity of clerk of said House, had agreed and contracted with said plaintiff to print a ninth volume of said laws in the manner as resolved, and to deliver from his office,- as clerk of the House aforesaid, a copy of said lavijs to said plaintiff, to enable him to print the same, and had directed the chief clerk in the office of said clerk of the House of Rep 5 entatives to prepare the said copy, and deliver the same to said plaintiff; he, the said plaintiff, in consideration thereof, had made ample arrangements, and employed the means to print the said ninth volume of said laws, and was in all respects ready and willing to print the same, after the maimer as directed in said resolution, when the said Walter S. Franklin departed this life,, and the said Hugh A. Garland was elected his successor as clerk of the House of Representatives aforesaid, and had charge of the laws aforesaid, from which the said ninth volume was to be printed.' And the said plaintiff having the contract aforesaid, and in consideration thereof having prepared for the faithful execution of the terms thereof according to said resolution, and having also, socn after the election of said defendant as clerk aforesaid, to wit, on or about the month of December, in the year 1838, at the county aforesaid, aDd before the committing of the grievances herein complained of, the said defendant was notified of said subsisting contract, and of plaintiff’s readiness, and willingness, and preparation to comply with the same, according to the said resolution ; all of which notification of contract and preparation, as given aforesaid, the said plaintiff avers, and the said defendant was in duty bound, as clerk aforesaid, to deliver a copy of said laws to jsaid plaintiff, in consequence and by reason of the said resolution of Congress and the said contract of 'said plaintiff. And he the said plaintiff afterwards, to wit, on or about the 1st day of February, 1839, at the county aforesaid, asked and demanded of said defendant, who had charge of -said laws from which the said ninth volume was to be printed, as clerk of the House of Representatives aforesaid, a copy of said laws under his charge, for the purpose of printing the same according to said contract, and in the manner as. directed in said resolution, and without which copy from the office of said clerk the said plaintiff coula not print the said laws as directed in • said resolution ; that the said defendant, contriving and wrongfully and injuriously intending to injure the said plaintiff, and to deprive him of the profits, and emoluments, and advantages which he .might apd otherwise would have derived and acquired from the printing of said ninth volume of the laws of the United States, and of the profits', emoluments, and advantages of the said subsisting • contract, well knowing that, without a copy of said laws from his- said office, the plaintiff could not print the same as directed in said resolution ; and the said defendant being in duty . bound to deliver a copy of said laws, as clerk aforesaid, to said plaintiff, to ..comply with said resolution of Congress, and with plaintiff’s contract aforesaid, afterwards, to wit, on or about the 1st day of February, 1839, at the county aforesaid, and on divers other days and times between that day and the day óf the issuing the writ in this behalf, did jyrongfully and injuriously refuse to deliver, or jumish or permit to be delivered from said office, or furnished therefrom to said plaintiff, a copy of the laws of the United States for printing the said ninth volume of said laws, as resolved in said resolution; and did also wrongfully and injuriously refuse to allow the said plaintiff to p^rint the said ninth volume of said-laws in the manner directed in said resolution, and did prevent and hinder him from printing the same. By means whereof the said George M. Davis lost the printing of said ninth volume, of said laws, and the benefit of said contract; and hath bien hindered and prevented from making, deriving, and having the profits, emoluments, and advantages of such printing, and of the compliance, upon his part, with the said contract, and hath also lost his time, troublé, and money, in preparations for complying with said contract ; which profits, emoluments, and advantages [he] hath been so hindered from making,, and time, trouble, and money he hath s,o lost in said preparations, were of great value, to wit, of the value of two thousand five hundred dollars, current money, and which profits and money he, the said plaintiff, might and would have had and received, but for the wrongful conduct of said defendant.”
    There was another count in the declaration, setting forth the same circumstances in a different manner.

      The plea was " non assumpsit,” upon which issue was joined, and the cause went on to trial. The record, after mentioning the names of the jury, proceeded thus: —
    “ Who, being empanelled arid sworn to say the truth in the premises, upon their oath do say, that the said defendant did assume upon himself in manner and form as the aforesaid plaintiff above against him háth complained, and they assess the damages of the said plaintiff, sustained by reason of the nonperformance of the promise and assumption aforesaid, to the sum of nineteen hundred dollars current money.”
    A motion , was then made in arrest of judgment for the following reasons, viz. :—
    “ 1. Because there is no cause of action stated in the first count of. the plaintiff’s declaration.
    “ 2. Ditto, as to the second count.
    “ 3. Because there is a general verdict, and one count is bad.
    “F. S. KEY, for defendant."

    This motion was overruled, and judgment entered upon the verdict. ' .
    In the course of the trial, two bills of exceptions were taken on the part of the defendant, which were as follows : —
    1st Exception. “ In the trial of this cause, the plaintiff, having offered the resolution ofCongress of 14th October, 1837, proved that in July, 1838, a verbal contract was made between the plaintiff and Walter Franklin, then clerk of the House of Representatives of the United States, for the printing of the ninth volume of the laws of Congress, in which it was agreed that the plaintiff should do the printing thereof on the same terms as had been previously agreed with plaintiff’s father, who had died some short time before, and had been paid to said plaintiff’s father for the eighth volume of the laws of the United States, and was to be paid for the same at the usual Gongress prices, — the printing to be executed under the superintendence and direction of Samuel Burche, chief clerk of said House of Representatives ; that no minute or entry of said agreement was made in .writing, among the books and papers of said Franklin’s office.; that it is usual and customary for the contracts made on the authority of the House to be made verbally, and the same have always been received by the House and paid for ; and that the said plaintiff frequently, after the making of the said agreement, called on said Burche for the work, stating his readiness to proceed with the work, and did not receive the same, because the said Burche had not prepared the laws for publication.
    “ And then further proved, that the said Walter Franklin died in- September, 1838, and the defendant was elected clerk of the House on the first Monday of December, 1838 ; that some time afterwards, in December, 1839, the said. Burche, not having yet prepared the said laws for said publication, and the said plaintiff waiting as before for the same, the said Garland was informed, about the 1st of January, 1839, of the contract so as aforesaid verbally made between the said Fránklin and the plaintiff, and observed that he had understood such a resolution was passed, and that such a work was to be given out for printing, and that he considered that as the agreement was a verbal one it was not binding, and that he, bad the right to give the contract to whom he pleased; that afterwards, in about two months from the beginning of December, 1838, he was again called upon and informed of the said contract, verbally made with the plaintiff by the said Franklin, when he said he had made an agreement or a contract with one Langtree ; and that the said Garland did make such agreement with said Langtree, and ordered the work not to be given to the said plaintiff, but to be given to said Langtree to be printed, which was done accordingly, and the plaintiff thereby prevented from doing the work.

      “ And further proved, that said plaintiff had made considerable preparations for the work, and had engaged Mr. Gideon to do the printing of the work, and had transferred to said Gideon his office and press, valued at $ 1,000, to be paid for by the profits of the work, — of all which the defendant was informed before he made the contract with Langtree ; and that plaintiff suffered considerable loss by the taking away said contract; and that said Gideon, in the prosecution of his preparations for said work, had expended $ 600 or $ 700 for paper for that very work.

      “ And further, that at the time of making said verbal contract with said Franklin, the plaintiff asked him if it was necessary it should be reduced to writing, and -was answered that it was not necessary, and was not usual; and also proved that there was no written contract in the office of the' clepk for the printing of the eighth volume of the laws of the United States.- And that said Franklin knew and assented to the plaintiff’s engaging said Gideon to do the said printing at the time of said contract; and that the defendant was advised by the clerks, before he made the contract with said Langtree, to be cautious and not get into difficulties by giving the work to another. And that no written contract with said Langtree, nor any memorandum thereof, ’ appears in the office of said clerk.

      “ And upon the evidence aforesaid of the said plaintiff, the defendant, by his counsel, prayed the court to instruct the jury, that if the same was believed by the jury to be true, the plaintiff was not entitled to recover, which the court refused, —to which refusal defendant excepts, and prays the court to sign and seal this bill of exceptions, which is done this 14th day of April, 1842.
    W. CRANCH. [seal.]
    B. THRUSTON. [seal.]
    JAS. S. MORSELL. [seal.]”

      2d Exception. “And thereupon die defendant, on the said evidence, prayed the court to instruct the jury as follows :—
    “If the jury believe from the evidence that the defendant, in making the subsequent contract with Langtree, and causing the compilation to be delivered to him to be printed, acted officially and bona fide, and not with corrupt motives, and verily believed that the prior contract made verbally with the plaintiff was not obligatory, then he is not. liable to damages in this action upon the evidence aforesaid; which also the court refused to give, — to which refusal defendant excepts, and prays the court to sign and seal this bill of exceptions, which is done accordingly, this 14th day of April, 1842. W. CRANCH. [seal.]
    B. THRUSTON. [seal.] ■
    JAS. S. MORSELL. [seal.] ”
    Upon these two exceptions the case came up to^this court.
    It was argued by Mr. Robert J. Brent, for the plaintiff in error, and Mr. Coxe, for defendant.
    , Mr. Brent, for plaintiff.
    The first count is defective in this : — t
    1st. It does not show any authority in the former clerk (Franklin) to make the contract on which Davis founds his claim, for the averment, that Franklin was “ directed to cause to be printed a ninth volume of the laws, &c., after the manner of the eighth volume thereof,” does not necessarily imply an authority to contract, inasmuch as that power could be executed by causing the volume to be printed by the regular printer of Congress, who might be entitled to all its printing.
    All the facts stated in this count may be true, and, yet Franklin have no power to make a contract. (See, as part of this argument, the Reports of House Committee in volume of Reports of Committees, 1840 — 41, No. 16, Rep. No. 101 and 215.) Therefore I conclude that Franklin’s authority as a public officer to make the contract with Davis does not sufficiently appear, and if so, it results as á corollary that it was his own unauthorized contract, and not binding on his official successor.
    2d. If, however, it was Franklin’s official contract, binding on his successor, then it was only binding on the appellant, as the agent of /the House of Representatives, and the.appellee’s remedy should be against the House of Representatives') by appeal to its justice. (See on this, 1 D. & E. 674 — 678 ; Hodgson v. Dexter, 1 Cranch, 362 ; 7 Wendell, 254; 12 Wendell, 179 ; 18 Johns, 125 ; Chisolm v. Georgia, 2 Dallas, 419, 444; 1 D. & E. 172 ; 2 Cowen, 533.)
    ' 3d. If binding on Garland as cler.k, yet this count shows no act of his tending to establish any liability on his part to Davis, bat a repudiation of the. contract utterly.
    4th. This count shows no consideration for the contract, for it is nowhere averred that Davis was to be compensated, nor is it sufficiently shown that Davis entered on the performance of this contract. (See Coggs v. Bernard, 2 Ld. Raym. 919, 920, and Elsee v. Gatward, 5 D. & E. 143.) Merely stating that Davis was prepared to execute the contract does not make a sufficient consideration.
    5th. The contract, as herein shown, was to print after the manner of the eighth volume, and the count omits to show the manner of printing the eighth volumé, and thus a material term of the contract is not shown.
    Again, the second count is, in addition to the above objections made to first count,, liable to the further objections : — 1st, that it shows by way of recital a contract with Franklin as clerk (the consideration or terms of which are not given), and then sets forth no other ground for Garland’s liability, except his being the successor to Franklin, -and refusing to give the copy.
    Now it is obvious that Franklin may have made a private or unauthorized contrapt as clerk, and it will not be contended that a clerk’s contracts are ipso facto binding on his successor, without showing something more than his naked contract, as a ministerial officer is not supposed ex officio to be capable of making any contract he may choose.
    2d. This cohnt does not show thát by the contract the clerk was to furnish/' the copy, but merely a subsequent- promise by Franklin to fqrnish the copy, and yet the gravamen of it is the refusal of Garland to furnish a copy.
    Again, it is manifest, on the face of both these counts, that no liability in defendant is shown, and that the declaration is in material respects uncertain and unmeaning according to the rules of pleading.
    ’ If eithpr count is defective, the judgment should have been arrested. (5 D. & E. 143.)
    The first exception sets forth all the evidence, and I con end its prayer should be granted, because, •—
    1st/ The contract as proved was variant in this, that the printing whs to be on the same terms as plaintiff’s father had agreed for (8th vol.), and the declaration does not show any such terms in the contract.
    2d. The declaration does not set forth the material qualification in the contract, that the printing was to be under direction of Burche. "(See the statement of evidence.)
    3d. The proof is, that payment was to be at usual Congress prices, and they are not averred in the declaration, nor shown in evidence.

      4th. The proof is, that the printing was to be done under direction of Sam. Burche, and that Burche was the party in. default in not preparing the laws; how then could defendant give a copy until Burche’s compilation was completed, which is nowhere shown in the evidence ?
    Again, the evidence sets forth as the basis of Franklin’s authority the resolution of 14th October, 1837 (which see in House Journal, 14th October, 1837,. Extra Session, p. 191). It appears from the plaintiff’s own evidence thus offered, that Franklin’s power was in limine rfeferrible to another resolution which should govern, and control his power, arid which resolution was not given in evidence, but can be seen in House Journal, 30th June, 1834, page 903; and also see House Journal, 25th June, 1836, page 1098.
    Now the whole evidence either shows a complete authority in Franklin to make the contract, or it does not. If it shows his authority, then could Franklin be sued for nonperfórmance ? (See 1 Durn. & East, 172, and 2 Cowen, 533.) If he could not be sued, bow can his successor in office ? And if his contract was unauthorized, his official successor cannot be bound by it.
    Again, here is a public officer bound, we will suppose, to have the laws printed ; — he finds that his predecessor had never executed his power, and he feels the obligation to discharge his official duty. Is he to be obstructed in that duty by caveats and notices .from A., B., andC., that, as clerk, he must comply with contracts of his predecessor, of which he has no proof but an assertion or an unsworn statement of a witness ? . Has he even a discretion to determine whether his predecessor made a contract or not ? He finds the duty unexecuted by his predecessor, and he is bound to select either the public printer, if there be one, or to take the matter .into his own hands, and perform it with his own agents. How dangerous it would be to suffer a clerk to be intimidated and delayed in matters of such high importance by the notices of every man'who might set himself up as entitled by a verbal contract with his predecessor.
    Again, it is to be regretted that-the record does not. contain the fact that there was, at the time of Franklin’s contract, a regular printer, duly elected by Congress, and entitled to all its printing (see Report of Committee, supra, 1st point) ; but though the fact is not in the record, yet the resolution of 14th October, 1837, does not on its face imply any power to the clerk to make contracts for .the printing, but only to cause a volume to be .printed after the man-, ner of the eighth volume and under a previous resolution, which, if incorporated as it ought to be as part of plaintiff’s case, might have shown, that the manner of printing the eighth volume was by the public printer, and not by such person as the clerk might select.

      Again, the former resolution ought to be produced as part of the plaintiff’s case, and to fix the terms of the contract, and it is material, as, if shown, it might appear that the contract was not to be executed within a year, and therefore void under statute of frauds. (See Boy dell a. Drummond, 11 East, 142.)
    It does not appear from the record that Garland ever received any money to pay for such a contract, or that he acted with fraud or deceit.
    On the second exception, I refer to Stockton and Stokes v. Kendall, 3 Howard’s Rep. 97, 98.

      Mr. Coxe, for defendant in error.
    The first count in the declaration sets forth the resolution of the House of Reprentatives, directing the clerk to cause to be compiled a ninth volume of the laws, &c. ; that being so directed, the then clerk, Franklin, employed the plaintiff, and agreed and contracted with him in pursuance of said resolution. . This being an action for a tort, and the contract referred to being mere inducement, not the gist of the action, such statement of the authority to contract, and of,the actual contract, is in accordance with the strictest rules of pleading. Particularly after verdict such averments are sufficient.
    The second, third, and fourth objections are founded upon a misapprehension of the nature of the action. It is not a suit brought upon a contract for the purpose of compelling its performance. In this case, Franklin acted as agent of the House in making the contract, and could not be held responsible for its execution. The suit is brought against Garland for an illegal, unauthorized act of his own, individually, in preventing the execution of the contract, and depriving plaintiff of the benefits which were to result to him from it, and remuneration for the expenditures he had made towards its performance. The main grounds of defence now urged were taken in the case of Freeman v. Otis, 9 Mass. 272.
    Another case, Shepherd v. Lincoln, 17 Wend,. 250, illustrates the distinction. That was a suit brought against 'defendant as superintendent of repairs of canal, and he was held responsible for an act of negligence or misfeasance.
    Franklin made the contract as a public agent, and therefore never could have been made personally responsible for its non-execution by the House. Garland does not pretend that he was instructed or directed by the — House to annul that contract; his interference was unauthorized, and therefore he is answerable.
    The general principle is, that when an agent acts within the scope of his authority he is not personally responsible, — recourse must be had to the principal; but if he transcend his'authority, he is personally liable.
    The declaration is sufficient in averring the actual existence of a contract. The terms of the contract are unimportant in this suit, and need not be averred. Even in an action brought on 'the contract itself, it is sufficient to aver it according to its legal effect, and it is unnecessary to set out more of it than suffices to show a cause of action. 2 Wend. 579 ; 8 Cow. 33, 9 ; 13 Johns. 224.
    2d. The same answer may be given to the objections urged against the second count.
    In an action brought for misfeasance, it is unnecessary to aver or prove any consideration for the contract. 20 Johns. 379..
    3d. Upon the bills of exceptions. It is a sufficient answer to these exceptions to say, that they do not profess to be founded on all the evidence in the case. The first bill, after stating' certain evidence as given by plaintiff on the trial, says (p. 14), “upon the evidence aforesaid of the said plaintiff, defendant prays,” &c. It does not allege that this was the whole evidence given. This is a .fatal, and. incurable defect in the case. For aught that appears, other and sufficient evidence may have been given, and the omission of it may have been the very reason why the instruction prayed wás refused by the court. Plaintiff in error must establish the error in the judgment complained of; every reasonable intendment should be in favor of the judgment. Ventress v. Smith, 10 Peters, 161.
    2d. The only evidence stated in the bill of exceptions is such as was adduced by plaintiff. The prayer is,, then, substantially a. demurrer to the evidence.- Every fact which it conduced to prove, and every conclusion inferrible from those facts, is admitted; •mala jiies ánd oppression are fairly deducibíe from, the facts proved. The jury has passed upon all the allegations in the declaration ; and if they went beyond the testimony, the proper remedy was by motion for a new trial. The jury took the .'case without any instruction whatever from the court.
    The four- specific objections now made imply that all the evidence is embodied in the record, which does not appear ; and they are founded upon the misapprehension already adverted to, in supposing this action to be brought upon a contract against a party to it to compel its performance^ This has been shown to be an error.
    The subsequent exceptions are all fully answered in what has been before said.
    After the argument was closed, the court intimated to the counsel the difficulty arising from the irregular plea, issue, and verdict, • compared with the declaration, upon which Mr. Coxe filed the following supplementary argument.
    The difficulty now suggested by the -court is. understood to be this.- The action is brought as for a tort, the plea is' non assjimpsit. Issue being joined on this plea, verdict for plaintiff and judgment entered accordingly. Can this judgment be sustained upon these pleadings ?
    1. The entry, of the pleas is, in the Circuit Court, the act of the clerk, the defendant being at liberty to abide by the plea thus entered, or to plead de novo. If he does not amend, he adopts and abides by the plea filed by the clerk.
    In this case, the plea of non assumpsit, if entirely wrong, is a mere clerical error, which would have been amended had it been brought to the notice of the court. If defendant had refused to amend, the plea would have been regarded as a nullity, and judgment entered for want of a plea. This plea was adopted by defendant,.and is therefore to be regarded as his. The fault, if any, is his.
    2. The action, though sounding in tort, is founded upon a contract. The existence of this contract was traversable, and on the trial it was necessary for plaintiff to prove it. The plea of non assumpsit may be so moulded as to make it a denial of the contract made between plaintiff and Franklin. As in covenant, the plea of non est factum, is a good plea, though it merely puts in issue the actual execution of the. instrument declared on, and neither denies the breach nor the alleged consequences. A special plea, putting in issue the contract which lies at the foundation of this action, would, therefore, not be an immaterial plea.
    '3. Asa general rule, a party shall not be permitted to derive benefit from his own error. If there is fault, it is the defendant’s fault, and, at this stage of the case,’it would be in violation of this principle to allow him to assign it for error.
    4. Defendant- has not' assigned this' defect for error, — he has not asked for. a reversal on this ground.
    5. If the error is fatal,, it should have been brought before this court in another form. The Circuit Court should have been moved for. a repleader; had they refused, such refusal is assignable for error. No such application was made, and consequently there is no error cognizable by the Supreme Court.
    6; Had the Circuit Court refused to award, a repleader, and such judgment been reversed as erroneous, the judgment of the Supreme Court would have remanded the cause, with its mandate directing such’ repleader. But can a court of errors in any other way award a repleader ? Gould on Pleading, 518, § 47.
    7. If. the Circuit Court might lawfully have refused to award a repleader, then there is no error.
    Gould on PI. 509, § 32. A repleader for the immateriality of the issue is never awarded, it seems, for that party who tendered the issue. ■ Cites Dough 749, per Buller. There can be no .ground for a repleader, for the plea is substantially bad ; there is-no fact alleged in it which it coaid serve any purpose to deny, or to go to issue upon.
    1 Ld. Raym. 170. It was argued, that if the verdict passes against him who made the first fault in pleading, no repleader shall be granted, but it is otherwise if it passes for him. The court refused to award a repleader, for the issue was not wholly immaterial, and after verdict court will intend that the matter put in issue was material.
    1 H. Bl. 644. In assumpsit, declaration had five counts. Defendant pleaded nil debet to the first, and left the others unanswered. Judgment for plaintiff: Court held the defect cured by the
    verdict, and defendant should not take advantage of his own mispleading to defeat plaintiff’s suit, when jury had found he owed the debt.
    Cowp. 510. Court will not grant a repleader but where complete justice may be answered.
    Gould, 510, § 32. Therefore, if vc, diet is against him who tendered the issue, judgment must also regularly go against him. For, as the fault in the issue commenced on his part, his traverse being-bad in law, and it being moreover found to be false in fact, it is deemed unreasonable to grant him the indulgence of a repleader. Yet if the verdict were for the same party, a repleader would regularly be awarded. §§ 33 — 36.
    Ibid. § 37. Courts ought never to award a repleader, or arrest the judgment for faults in the issue, when it is apparent that no useful end can be attained in so doing. Citing 1 Str. 198, where Powys, J., said, — “ I am of the sáme opinion, for if we should grant a repleader, 1 do not see how we can have any new light in the case.”
    Gould, §§ 38, 45. Judgment ought never to be given for, or arrested in behalf of, that party in whose pleading the first substantial defect is found. Ibid. § 49.
    After verdict for the plaintiff, the defendant shall not take advantage of his own mispleading. Harvey v. Richards, 1 H. Black. 644.
    The plea, of “ not guilty ” in assumpsit is cured by verdict. The error assigned was, that issue was joined on the plea of not guilty. Verdict cured that. 8 Serg. & Rawle, 441 ; 2 Stra. 1022.
    A right defectively alleged is cured by verdict. 6 Verm. Rep. 496 ; 2 Marshall, 254.
    A defective statement in the. declaration for want of date of the assumpsit, also failure to state the consideration, is cured by verdict. 1 Watts, 428 1 Day, 186, note.
    After verdict in an action by an administrator, a defective allegation in the declaration of the promise to the administrator and the death of -the intestate, and an omission to make profert of the- letters of administration, cannot be taken advantage of, though they- might have furnished good causes of demurrer. 1 Harris & Gill, 14.
    It was held, that in an action of assumpsit and not guilty pleaded, and issue,-the judgment may be entered, for it is only mispleading, and the real merits may as well be tried on that issue as on any other. 4 JBac. Abr. 84.
    The omission to join in issue to some of the .replications is healed after verdict. 3 Harris & Johns. 109.
    Departure is cured by verdict. Connect. Rep. 252.
   Mr. Justice WOODBURY

delivered the opinion of the court.

In the examination of this case, a defect has been discovered in the pleadings and verdict, which was not noticed in the court below, nor- suggested by the counsel here.

And the first question is, whether, under these circumstances, it can be considered by us ; and if it can be, and is a material defect, not cured or otherwise capable of being overcome, whether it ought to be made a ground for reversing the judgment, and sending the case hack for amendment and further proceedings.

There can be no doubt, that exceptions to the opinions given by courts below -must all be taken at the time the opinions are pronounced.

But it is equally clear, that when the whole record is before the court above, as in this case, any exception appearing on it can he taken by counsel which could have been taken below. Roach v. Hulings, 16 Peters, 319.

So it is the duty of the court to give judgment on the whole record, and not merely on the points started by counsel. Slacum v. Pomeroy, 6 Cranch, 221 ; Baird & Co. v. Mattox, 1 Call, 257 ; 16 Peters, 319.

In United States v. Burnham, l Mason, 62, the court alone took notice of the defect, which was the sole ground of its opinion.

In Patterson v. United States, 2 Wheat. 222, it is stated, that “ the points made were not considered by the court, and judgment was pronounced on other grounds,” and Justice Washington says (p. 24), —“ The court considers it to be unnecessary to decide the questions, which were argued at the bar, as the . verdict is so defective that.no judgment can be rendered upon it ”; and on that account the proceedings below were reversed. See also Harrison et al. v. Nixon, 9 Peters, 483, 535.

I proceed, then, to consider the nature and character of the difficulty in this case, appearing on the record.

Since discovering it, an opportunity has been given to the counsel for the original pldintiff, which has been improved, to attempt to remove it by argument and authorities. But it still remains, and consists in this.

The declaration is an action on the case, sounding in tort. It sets out no contract except one by way of inducement, made by Mr. Franklin, the predecessor in office of the defendant, and. it then proceeds to make the gist of its complaint a wrongful and injurious neglect and refusal by the defendant to furnish a copy of certain laws to the plaintiff, as had been agreed by Franklin. We are required to take this view of the declaration, not only by the averments, in it, but by both the present and past positions of the counsel for the plaintiff, that it was intended to be founded on a misfeasance. The plea, however, instead of beiiig “ not guilty,” as was proper in such case (Com. Dig. Pleader), is non assumpsit, and the plaintiff below, not demurring thereto, nor moving for judgment notwithstanding such a plea, joined issue upon it, and the verdict of the jury conforms to the plea and issue, and merely finds, “ that the defendant did assume upon himself in manner and form,” &c., and assesses damages, “sustained by reason of the nonperformance of the'promise and assumption aforesaid.”

Beside the general reasoning in the books, that pleas amounting to the general issue.should traverse the material averments in the declaration, and, where the action is one on the case for a tort, should deny the tort by pleading “ not guilty,” it is laid down in most elementary treat’ ses that “ not guilty ” is the proper general issue in such'cases. See, Com. Dig. Pleader.

Beyond this, it has been actually adjudged in an action on the case, after full hearing, that non assumpsit was a bad’plea. Noble v. Lancaster, Barnes, 125.

That action was trover, but being still an action on the case, the same principle’applied.

Nor is the difference merely formal or' technical between actions founded in tórt and in contract. 1 Chit. Plead, 418, 229.

Because, when in tort or ex delictu, a set-off is not admissible, nor can infancy be pleaded as to one ex contractu, nor can a plea, in abatement be sustained, that álb concerned -in the wrong are not joined, as it may be in counts óii contracts, -and a writ of inquiry must issue to ascertain the damages, which is often unnecessary in suits on contracts. A declaration is bad which unites a count in tort with one in contract. 2 Chit. 229, 230 ; 1 Chitty’s Rep, 625, note 3 4 D. & É. 794 3 8 D. & E. 33.

Various other cases'analogous to this might be cited, which tend to show that the present plea is improper, but it is not deemed necessary, in this stage of the inquiry, to enlarge on that point; and I proceed to the next and more difficult question, whether such a plea, though bad on demurrer, should not be considered as good after verdict, and cured by the statute of jeofails.

As' a general rule, all informality in a good plea is held to be cured by a verdict, and ought to be, in order not to delay, through a defect of mere form, what may seem to be just. 1 Levinz, 32 3 6 Mod. 1 ; Com. Dig. Pleader, R. 18 ; 6 Johns. R. 1.

Here, however, there appears to be no informality in a good plea ; on the contrary, it looks more like formality in a bad one. And if it.be asked, whether there are no cases of-bad pleas which are cured by a verdict, we answer, that several exist, but that they are cases where the pleas, though bad on demurrer, because wrong in form, yet still contain enough of substance to put in issue the material parts of the declaration. That is the test..

In the opinion of a majority of the court, the plea under consideration does not contain enough for that purpose; and my apology for examining this point somewhat more in detail must be found in the circumstance, that the court are divided upon it.

The provision by Congress in relation to amendments is to be found in the 32d section of the Judiciary Act of September 24th, 1789, and is similar to that in the 32 Henry 8th, but certainly not broader. See .the former, in 1 Lit. & Brown’s ed. 91, and the latter in 1 Bac. Abr. Amendment and Jeofail,* B.

Under both of these statutes, it has frequently been adjudged, that defects in substance are not cured by a verdict; “for this,” says Bacon (Abr., before quoted, E),“ would have ruined all proceedings in the courts of justice ” ; and a defect in substance, in a plea or verdict, is conceded, in all the books, to exist when they do not cover “ whatever is essential to the gist of the action,”

The present plea, if tried by this test, seems not to be remedied by the verdict, because, so far from traversing all that is essential, nothing js deniedj unless it be the inducement. Thus it traverses a promise simply ; but the only promise set out in the declaration is one introductory to those material averments, which, as before stated, are the wrongful and injurious acts of the defendant. .So far from- denying those acts, the plea entirely passes them by, and they are neither put in issue, nor a verdict returned upon them one way or the other. It is true, that, in some actions for a tort, a promise may be referred to in the declaration, which sometimes will constitute one material fact among several others. But it is only one; and not the whole, nor is it the most material fact; that being, in such cases, the misfeasance of the defendant. Nor. does the verdict here find this one fact or promise such as averred in the inducement. There it is stated to be made by Mr. Frank-lin ; but, on the contrary, the verdict finds a promise made by the defendant.

On recurring to precedents,-, several are found , which confirm these conclusions. In respect to pleas they show that, when so imperfect and immaterial as this, they are not cured by verdict. And the reason generally assigned, and which-pervades the whole, is that before mentioned, namely, that they do not cover or traverse all the gravamen of the declaration. Staple v. Heyden, 6 Mod. 10; Willes, 532 ; Tidd’s Prac. 827 ; Gilb. C. P. 146.

Hence it has been decided that a '-plea of non assumpsifto an action of debt is not thus cured (Brennan v. Egan, 4 Taunt. 164 ; Penfold v. Hawkins, 2 Maule & Selw. 606), becausé it covers too little or is irrelevant. While, in pursuance of the same rde, it has been held that nil debet to assumpsit (1 Hen. Bl. 664) and “not guilty” either to assumpsit' (Cro. El. 470, and 8 Serg. & Rawle, 441), or to covenant (1 Hen. & Munf. 153), or to debt for a penalty (Coppin v. Carter, 1 D. & E. 462, note), are cured by a verdict, because they contain enough to put in issue all wdiich is important in the declaration.

In the present case, the issue manifestly reaches only a part of the case, and is therefore incurable (Hardres, 331); and it comes expressly within the definition of an immaterial issue, which is also incurable. Carth. 371; Bac. Abr. Verdict, K ; 2 Levinz, 12; 2 Saund. 319 ; 2 Mod. 137 ; Gould’s Pl. 506, 509.

This is undoubted, from Williams’s definition in Bennet v. Holbech,.2 Saunders, 319, o. He says, — “An immaterial issue is where a material allegation in the pleadings is not answered, but an issue is taken on some point which will not determine the merits of the case,, and the court is often at a loss for which of' ihe parties to give judgment.”

So in Benden v. Manning, 2 N. H. R. 291, it is laid down, on circumstances like the present, that “ if, instead of assumpsit, a special action on the case had been brought for misfeasance, it is very clear, that no consideration need have been alleged or proved. The gist of such an action would have been the misfeasance, and it would have been wholly immaterial whether the contract was a valid one or not.” 5 D. & E. 143 ; 2 Wils. 359 ; 1 Saund. 312, note 2.

If we should next compare this plea and issue in their substance with a few others less general; that have been solemnly adjudged to be bad, and not cured by verdict, though found for the plaintiff, the result will be the same.

It may be seen in Tryon v. Carter, 2 Strange, 994, that, in debt on bond, payable on or before the 5th of December, the defendant pleaded payment on the 5th of December, and issue being joined and found against him, the court still awarded a'repleader, as it could not be inferred from these pleadings that payment may not have been made before the 5th.

See another in Enys v. Mohun, 2 Strange, 847, where to covenant on a lease to C., averred to come by ássignment to the defendant, the plea was that C. did not assign to him, and verdict was for plaintiff. But the court awarded a repleader, as the issue found does not cover all the important parts of the declaration ; namely, that the lease may have come to the defendant not from- C. direct, but by mesne assignments. Same case, in 1 Barnardiston, 182, 220. See also other cases. Yelv. 154; Peck v. Hill, 2 Mod. 137; Read v. Dawson, ibid. 139; Stafford v. Mayor of Albany, 6 Johns. 1; Com. Dig. Pleader, R. 1 and 2, V. 5 ; 1 Chit. Pl, 625, 695 ; 6 D. & E. 462 ; 1 Saund. 319, n.

In Patterson v. United States, 2 Wheat. 224, Judge Washington lays down the whole law precisely as we view it, in respect ' to a verdict varying materially from the issue, and which principle applies equally well to a plea varying from the substance of the declaration. He says, — “ Whether the jury find a general or a special verdict, it is their duty to decide the very point in issue, and although the court in which it is tried may give, form to a general finding, so as to make it harmonize with the issue, yet if it appear to that court or to the appellate court that the finding is different from the issue, or is confined only to a part of the matter in issue, no. judgment can be rendered on the verdict.” And on error the proceedings below were reversed.

After all this, it is hardly necessary to state further, by way of precedent, that.in Noble v. Lancaster, Barnes’s Notes, 125, before cited, this very point was decided. Non assumpsit was pleaded to an action on the cáse (e. g. trover), and was held not to be cured by a verdict, but was bad in arrest of judgment.

Looking, then, to many precedents, as well as correct principles in pleading, the issue presented and tried here is not only an improper one for the case ; but, not containing enough to cover all that is material in the declaration, and being thus imperfect in substance, it “ does not determine the right between the parties,” and is not cured by the verdict or the statute of jeofails.

A moment as to the defects in the verdict. It is difficult to see how an immaterial and bad plea can be cured by a verdict, which, as in this case, is quite as immaterial as the plea. Indeed, in some respects, the verdict here, compared with the declaration, is more defective and irremediable' than the plea..

It is laid down in Comyns’s Dig. Pleader, S. 24,.that a verdict is. even void if it be “ variant from the declaration,” and he gives as one illustration from 2 Roll. 703, 1. 35, “in assumpsit, if it finds a different promise. ”

In the present case, the promise is found not only, different from that laid in the declaration as inducement, but the verdict varies in other essential respects,from the declaration, finding nothing of any of the misfeasance charged in it on the defendant.

The defect here, then, is in the verdict as well as plea, and though a mere informality in the former is cured by the act of Congress as to amendments (16 Peters, 319), yet the defect here is similar in both, and as just shown, being on principle' in both a defect in substance no less than form, is uncured; (Steams v. Barrett, 1 Mason’s R. 470, and 2 Mason’s R. 31.)

But several arguments have been offered against a reversal of the judgment and further proceedings, and in favor of rendering judgment for the plaintiff, on. .this record, though the plea, issue, and verdict are all defective in substance, and do not show which party is entitled to" recover, on the real merits in dispute, or that they have been legally tried.

These arguments it is our duty to examine. One is, that the whole merits, according to the evidence reported,,may have actually been considered and passed upon in the court below under this plea and issue. But'it is a sufficient answer to this, that if so done it was illegally done, no evidence being competent under that issue except the promise described in it, and no opinion of the jury or the court being regular or proper under it, except as to that promise alone. Harrison et al. v. Nixon, 9 Peters, 484.

There are many cases showing that the evidence must be limited to the plea. Mar. Ins. Company v. Hodgson, 6 Cranch, 206 ; 4 Wheat. 64, in case of the Divina: Pastora. The court say you must “ not admit the introduction of evidence varying from the facts alleged.” 9 Peters, 484. The probata should conform to the allegata. Boone v. Chiles, 10 Peters, 177.

In Barnes v. Williams, 11 Wheat. 416, it is said, — “ Upon inspecting the record, it had been discovered that the special verdict found in the case was too imperfect to enable the court to render judgment upon it.” A certain fact was important to the recovery. “ Although in the opinion of the court there was sufficient, evidence in the special verdict from which the jury might have found the fact, yet they .have not found it, and the court could not upon a special verdict intend it.”

These- illustrations and cases tend to show the difficulties in forming an opinion on any thing not found or apparent on the record ; and the impropriety of conjecturing and pronouncing on the real merits, when both the issue and verdict are defective in substance in relation to them. But, in this case, if the promise averred to have been made by Franklin was treated at the trial as one made by Garland, so far as regarded its operation and his duty, ■— which has been the argument of the original plaintiff’s counsel before us, and which may, for aught we now decide, be corrrect, — then we should be called upon to render judgment against Garland merely on such promise and a breach of it.

That is every thing' which the verdict finds or the issue presents, in the most favorable view.

But that being a promise confessedly on the whole evidence made by the original defendant, or his predecessor, as a public agent, if now rendering final judgment, we should probably, in that view of the record (no tort having been put in issue or found by the verdict), be obliged to decide against the original plaintiff on the merits, because public agents are not. usually liable on mere contracts or promises made in behalf of their principals. (See on this Hodgson v. Dexter, 1 Cranch, 345; Macbeath v. Haldimand, 1 D. & E. 172 ; Fox v. Drake et al., 8 Cowen, 191 ; 2 Dall. 444 ; Osborne v. Kerr, 12 Wend; 179 ; Story on Agency, §§ 302 — 308 ; Lord Palmerston’s case, 3 Brod. & Bing. 275 ; Freeman v. Otis, 9 Mass. R. 272, qusere in part.)

On the contrary, however, if the, action is to be considered as brought, not on any promise except as inducement, but on a wrongful act or misfeasance, as the plaintiff sets out his case in his declaration and still contends to .be the truth, then it seems manifest that — nothing on that misfeasance, the essential point of the- action* having been either traversed in the plea or found •by the verdict — there is nothing upon which judgment can legally be rendered for either party on the merits. It will be seen that we come to 4;his conclusion, not because cases are wanting which hold that officers not judicial, nor having any discretion to exercise on a subject (Wheeler v. Patterson, 1 New Hamp. R. 88 ; Kendall v. Stokes, 3 Howard, 98 ; 11 Johns. 114 ; 2 Ld. Raym. 938), are liable in tort for misfeasances, whenever they áre violations of public laws or official .duties (Shepherd v. Lincoln, 17 Wendell, 250 ; 5 Burr. 2709 ; 6 D. & E. 445 ; Gidley, Ex. of Holland v. Lord Palmerston, 7 J. B. Moore, 91 ; 15 East, 384 ; 9 Clark, & Fin. 251 ; 1 Bos. & Pul. 229 ; Little et al. v. Barreme et al., 2 Cranch, 170 ; 13 Johns. 141 ; Tracy et al. v. Swartwout, 10 Peters, 95), though others consist of unsuccessful attempts to charge persons in tort for matters which originated and existed in fact only as contracts (Bristow et al. v. Eastman, 1 Esp. N. P. Rep. 172 ; Jennings v. Rundall, 8 D. & E. 335), or which were mere nonfeasances (20 Johns. 379 ; 12 Mod. 488 ; 1 Ld. Raym. 466 ; 4 Maule & Selw. 27 ; Story on, Agency, § 308); but because the issue and verdict present nothing in relation to any such misfeasance, and our opinion is intended'to be confined to. the questions on the pleadings, without any decision upon the merits. Indeed, it would be difficult to express one on them where we have been unable to agree on one, and where a majority of the court think the pleadings are not in a proper state to enable us to give one satisfactorily.

In this' state of things, the most obvious course to assist us to “ reach the law and justice of the case” would be to reverse the judgment below and award a repleader. This would not deprive either party of any merits they may have, and may be able hereafter to show on proper pleadings, and costs would indemnify the party who has been delayed by any bad pleading, so far as he ought to be indemnified considering his own fault in this case, in joining and trying an issue immaterial or radically insufficient' to settle- the cause of action, rather than demurring to the plea seasonably. But such'a course is objected to on certain grounds not yet considered, and which it is our. duty to notice. One of them is, that when a pjea or verdict is radically defective, judgment ought to be rendered, notwithstanding the verdict, for the party whose pleadings are right; and another, a branch of this, is, that a court ought in no case to permit the party who commits the first error to have the judgment reversed and be allowed a repleader, unless, perhaps, when the verdict is in his favor.

Though several of the text-books lay down rules like these in broad terms, it is first to be’ noticed that some state them with a quaere or doubt. (1 Chit. Pl. pote, 522, 633, and Com. Dig. Pleader.) In others, the cited authorities do not support them, as Gilbert, quoted in Tidd, 828. In others, the counsel, rather than the court, recognize them. Kempe v. Crews, 1 Ld. Raym. 170 ; Taylor v. Whitehead, Doug. 749. In others, the court refer to them, but do not .appear to have founded their decision on them, as Webster v. Bannister, Doug. 396, where the issue covered the merits (3 Hen. & Munf. 388), and in others, matters still different existed, which justified the judgment given, independent of these rules.

Thus, if a,plea be bad, but still confesses the cause of action without setting out a sufficient avoidance, judgment can with propriety be rendered for the plaintiff on such confession, if the declaration be good. Rex v. Philips, 1 Str. 397 ; Jones v. Bodingham, 1 Salk. 173 ; Gould on Pl. 509 ; Simonton v. Winter et al., 5 Peters, 141 ; Kirtley v. Deck, 3 Hen. & Munf. 388 ; 6 Mod. 10.; Tidd, 827.

So, if the plea be a mere nullity, — putting nothing material in issue, -^-judgment is at times allowed to be signed as for want of a plea, as if nil dicit, provided the declaration be good. 4 Taunt. 164 ; 2 Maulé & Selw.*606.

So, if the plea be evidently a sham plea, or fictitious, a like course is warranted. 10 East, 237 ; Tidd,. 831.

Or if the plea, though neither of these, still be defective, but sets out such facts as demonstrate .that the party has no merits, and that no amendment could be made which would avail him any thing, or, in other words, nothing is left in the case that can be mended. Gould on Pl. 514, § 39 ) Tidd, 831 ; Henderson v. Foote, 3.Call, 248.

It is incidental circumstances like these, affecting the merits and not adverted to always in decisions or elementary treatises, which have governed most of the opposing cases, rather than a mere technical, and in some degree arbitrary rule, without reference to the merits, and which would bar a party claiming to possess them from having them tried on a repleader or amendment, on complying with equitable terms.

In the case now under consideration, the plea comes under neither of these categories, neither confessing a cause of action, nor appearing to be a sham or fictitious plea, nor disclosing enough to snow, the defendant to be without any good defence. On the contrary, a defence appears, which the original defendant seems always to have urged with great confidence as being good. Under these circumstances, then, repleading or something equivalent would seem proper to do justice between the parties, and to carry out the principle of the statutes of jeofails, so as not to prevent a judgment on the merits, because some “ siip,” as Lord Mansfield calls it, has happened on the part of the defendant in his plea. Rex v. Philips, 1 Burr. 295 ;, Tidd, 828 ; Gould on Pl. 508, §§ 31, 40. If the right be not put in issue and may be,, a ruling to permit it seems reasonable. Staple v. Heyden, 6 Mod. 2.

The true meaning of these technical rules can be made rational and consistent, if they are held to apply to eases where good grounds are apparent for rendering final judgment. Then it may well be rendered against him who committed the first material fault in the pleadings; and which fault has not afterwards in any way been cured.

But if no such grounds appear, in consequence of the imperfections of the pleas and verdict, final judgment cannot properly, be rendered ; and the rules are inapplicable ; and the judgment below should be reversed, so as'to furnish an opportunity to remove those imperfections and reach the justice of the case .by amendments or repléaders. And so far from the party not being permitted to enjoy this, indulgence who committed the first fault, he is the only one who. needs it,-and íb whose behalf, under the liberal spirit of modern times, all statutes of jeofails are passed. Nor can the opposite party suffer by this course in'respect to the merits, as they are left open. Or in respect to cost and delay, as he should be indemnified for them, in the mánner before mentioned, by equitable terms, for allowing any amendments.

In this view of the subject, it is of no consequence for which-party the defective verdict was found, except at timés the fact in it may be an indication of merits in that party who has the postea, so far as that fact can affect the. merits. But in this case the fact found was immaterial in relation to the merits, as already shown ; and the object now is, to prevent such immaterialities from making a final disposal of the case, — to prevent substance from being sacrificed to form, — and where merits may exist, to adopt such a course as will present them to the court intelligibly, for a final adjudication of the real .justice of the case.

To all this, in an advanced era of jurisprudence, it will hardly do to repeat.from some of the old books, that' a party is for ever to be barred either for the badness or the falsity of his plea, if it happens to be imperfect and is found against him, though he has not confessed the declaration, nor stated any facts in his plea inconsistent with merits.

Much more, too, is it proper, if not indispensable, in a case like this, so defective on the record as not to justify any decision about the merits, to adopt a course which shall not bar the due consideration of them in the end, and which shall be for the benefit and guide of the court even more than a party, so as to prevent a leap in the- dark, and which for these and other reasons shall let the cause be reopened, and prepared and tried in a manner "to bring the whole of the merits legally before both the court and the jury. Cro. Eliz. 245 ; 5 Hen. & Munf. 393 ; Baird & Co. v. Mattox, 1 Call, 257.

Considering the character and position of this tribunal, as one of the last resort in administering justice, and considering the increased disposition of the age in which we live to eviscerate "the truth, and decide ultimately only on the real merits in controversy between parties, or in the words of Justice Story (1 Story, 152, in Bottomly and the United States), as to “ technical niceties,” considering “ the days for such subtilties in a great measure passed away,” it seems a duty of our own motion to give all reasonable facility to get the record in an intelligible and proper shape before we render final judgment.

As proof that such a course is sometimes deemed proper, to aid a court as well as a party, notwithstanding the technical rules before mentioned, it is stated in Gould on PI. 507, § 28, that judgment may be arrested after- verdict, “ if the issue is immaterial, so that the court cannot discover, from the finding upon it, for which party judgment ought to be given.” §§ 23 and 22.

So, though Gould lays down these rules before named, he says (page 514, § 40), if a special plea show there maybe a good justification, though it has been badly pleaded, judgment must be arrested, and a repleader awarded, as it appears a good issue might be formed ; and when this is the case, “ the ends of justice require that an opportunity for forming such an issue should be afforded.” , And in respect to objections in such cases to indulgence to a party whose plea is bad, Gould, 508, says in a note :• — “ The true answer to this inquiry appears to be, that the awarding a re-pleader in such case was originally rather an act of indulgence to a party, who tendered an improper issue, than a matter of strict right. An indulgencé grounded on.the presumption that the issue was misjoined through the inadvertence and oversight of he pleaders, and that a farther opportunity to plead would probaoly result in a material issue decisive of the merits of the. cause,” &c.

There are also some very high precedents against the application of these technical rules in cases and circumstances like those now under consideration. Such was the case of Rex. v. Philips, 1- Burr. 302. The- reasoning of Lord Mansfield on this whole 'kubject- is directly in point, as well as the case itself, and contains that beautiful correction- by him of a much abused maxim, in which he says it is the duty- of- a good judge to amplify justice rather than his jurisdiction, boni judiéis est ampliare justitiam, not jurisdictionem.’1’’ There, after verdict for the plaintiff, he allowed an amendment of the plea on payment of costs, being satisfied that “ the ends of justice require that an opportunity for forming a proper issue be allowed.”

There are many other cases, some ancient and some modern, which fully support the same conclusion. See Enys v. Mohun, 2 Strange, 847, and S. C., Barnardiston, 182, 220 ; Tryon v. Carter, 2 Strange, 994; Love v. Wotton, Cro. Eliz. 245.

In Serjeant v. Fairfax, 1 Levinz, 32, the plea was defective as not taking issue on enough, though it denied part "of what was material in the declaration. Verdict Vas found for the plaintiff, This is in substance the very, case now under consideration. Counsel contended,— “ When the issue is found against the pleader, judgment shall-be., for-the plaintiff; but if for him (the pleader), not. But Justice Twysden said, th^t if an improper issue is taken, and Verdict given thereon, judgment shall be given thereupon, be it for the-plaintiff or defendant. 2 Cro. 575. But an immaterial issue is where, upon the verdict, the court cannot know for whom to give judgment, whether for the plaintiff or for the defendant, as in Hob. 175; and with him the chief justice aiid Wyndham wholly agreed, and awarded a repleader.

'*In Simonton v. Winter et al., 5 Peters, 141, the verdict was-for the plaintiff, and yet, the plea being bad, the court reversed the judgment, as the cause of action was not confessed in the plea, and remanded the case with an order for a venire. de novo.

See also in point Green v. Baily, 5 Munford, 246, and Baird & Co. v. Mattox, 1 Call, 257.

And'in 9 Wheaton, 729, the pleadings are not given, but Justice Story said there was great irregularity and laxity in them, and “ it is impossible, without breaking down the best settled principles of law,, not to perceive that the very errors in the pleadings aré of themselves sufficient to justify, a reversal of the judgment and an award of a repleader,” and:without “ appropriate pleas,” “it would be difficult to ascertain what was to be. tried or not-tried.”.

See also Harrison et al. v. Nixon, 9 Peters, 483.

All that remains is to consider the best form of carrying these conclusions into effect.

In some of the cases, before cited, the court have not only reversed the judgment, but ordered a repleader. But in others, it is said that this cannot be done after a writ of error. 6 Mod. 102 ; 2 Keb. 769 ; Com. Dig. Pleader, and Verdict.

Such, probably, has always been the practice . in relation to- not ordering it by the court below-, after a writ of error is sued out, till the case is again reopened ; but it was once not the practice in the higher courts of error in England. See 2 Saund. 319 ; Holbech v. Bennett, 2 Levinz, 12.

Nor is it the practice now in. some of the higher courts in. this country.- In Green v. Baily, 5 Munford, 251, .judgment was reversed on the writ of error, the pleadings set aside after the plea, and a repleader awarded.

The 32d section of the Judiciary Act, before referred to, expressly empowers “ any court of the United States ” “ at any time to permit either of the parties to amend any defect in the process or pleadings.” Lit. & Brown’s éd. 91.

All know that a repleader is little more in substance than permitting an amendment.

But most of the precedents, in this court allowing- amendments after a writ of error are in maritime or admiralty proceedings, and I have found none of those in the form of repleadets. In 4 Wheat. 64 (though one in admiralty, where less strictness prevails in pleading than at common .law), Chief-Justice Marshall said, — “The pleadings in this case are too informal and defective to pronounce a final decree on the merits ” ; and the judgment was therefore reversed, and the cause remanded, With directions to permit' the pleadings to he amended.

See also a like order in the Divina Pastora, 4 Wheat. 63, and in case of the Edward, 1 Wheat. 264, and case of the Samuel, 1 Wheat. 13; Harrison et al. v. Nixon, 9 Peters, 483.

In cases at common law, the form is usually somewhat different. In 5 Peters, 141, the form was suited to the case, and judgment not only reversed, but a venire de novo ordered, and in United States v. Hawkins, 10 Peters, 125, Justice Wayne says, — “ A venir,e de novo is frequently awarded in a court of error, upon a bill of exceptions to enable parties to amend,” — and “amendments may, in the sound discretion of the court, upon a new trial, be permitted.”

See further, 2 Wheat 226 ; Barnes v. Williams, 11 Wheat. 416 ; Bellows v. Hallowed & Augusta Bank, 2 Mason, 31 ; Peterson v. United States, 2 Wash. C. C. 36.

See the form in England. Parker v. Wells, 1 D. & E. 783, and Grant v. Astle, Doug. 922.

In Pollard v. Dwight, 4 Cranch, 432, the court said, let judgment “ be reversed and the cause remanded for a new trial.”

Mr. Lee prayed “ with leave for the defendants below to amend their pleadings.”

The court said “ that the court below had the power to grant lteave to amend, and this court could not doubt but it would do what was right in that respect.” Similar to this was the course in Day v. Chism, 10 Wheat. 404.

And in United States v. Kirkpatrick, 9 Wheat. 738, the court not only reversed the judgment, and awarded a venire de novo, but gave “ directions also to allow the parties liberty to amend their pleadings.” So 9 Wheat. 540.

See on this further, Mar. Ins. Co. v. Hodgson, 6 Cranch, 218 ; 7 ibid. 47, 497 ; 9 ibid. 244 1 ibid. 261, 13; 10 ibid. 449; 4 ibid. 52 ; 16 Peters, 319 ; Moody v. Keener, 9 Porter, 252.

In conclusion, then, as by several cases in England the allowance of a repleader in courts of error seems to have gone into disuse in modern times, and as the practice in common law cases in this tribunal, though otherwise in some of the States, has usually been, not to direct either amendments or repleaders in cases like these, but to reverse the judgment and remand the cause to. thé court below for further proceedings there, we shall conform to that practice in the present instance.

Let the judgment below be reversed, and the case remanded for further proceedings.