Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818 Written: June 1818. 
Transcribed by MSGenWeb, Jan 2006

 
The legislature changed the term of the appellate court from December to July; but before the law was promulgated, the plaintiff sued out his     writ of error and citation returnable to December term, which was executed. On discovering his error, he obtained an alias citation     returnable in July, which was duly served. The court sustained the writ of error.
If the original writ of error bond is sent to this court, it will be sufficient.
Where the writ of error bond is filed with the papers, it is sufficient evidence, that it was approved by the proper authority.
In an action against the endorser of a promissory note, which, days of grace included, was due on the 29th of January, 1837, the plaintiff in his declaration averred "that afterwards, when the said promissory note became due and payable according to the tenor and effect thereof, to wit: on the 28th day of February, 1837, the said note was duly presented, &c. " on judgment by default, held inasmuch as the note was alleged to have been presented according to the tenor and effect thereof, it was sufficient; and that, the allegation of the day of  presentment under the scilicit may be rejected as surplussage; amd that the objection was cured by the statute of jeofails after judgment  by default.

    IN ERROR from the circuit court of the county of Rankin.
    This was an action of assumpsit by William B. Woodley against Rice, Wells, and others, as endorsers of a promissory note for four thousand dollars. There was judgment by default against the defendants. The note, including days of grace, fell due on the 29th of January, 1837 . The averment of presentment in the declaration, was as follows: "that afterwards, when the said promissory note became due and payable according to the tenor and effect thereof, to wit: on the 28th day of February, 1837, the said promissory note was duly presented, &c." It was assigned for error, that inasmuch as it appeared from the pleadings that the note was presented one month too late, the declaration showed no cause of action.
    A preliminary question arose upon a motion to dismiss the writ of error irregularities, which is sufficiently stated in the opinion of the court.

W. G. Thompson, for plaintiff in error.
    The plaintiff below, or defendant in error, states a defective cause of action, or to speak correctly, he does not show by the case, which he makes out for himself that he is entitled to the judgment of the court against the defendants below. This is manifest on the face of the declaration, even admitting all the facts therein stated as true. The promise of an endorser upon a bill or note is not to pay money absolutely, but upon the precedent condition that the holder shall make due demand of the drawer or maker, and give timely notice of the dishonor in case the bill or note be not paid. The statement in the declaration shows that this condition was not complied with on the part of the holders of the note, in the case before us. And, therefore, the endorsers were discharged; and the plaintiff had no cause of action against them.
    This is such a defect as is not cured, a common law, after a judgment on a verdict, or by nil dicit or default.
    The rule as deduced, correctly, from the authorities, is, that where there is any defect, imperfection or omission in pleading, whether in substance or form, which would have been a fatal objection on demurrer, yet if the issue joined be such as necessarily required on the trial proofs of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection or omission is cured by verdict, by the common law, or in the phrase often used, such defect is not any jeofail after verdict.--But still if the plaintiff states a defective title, or totally omits to state any title or cause of action, a verdict will not cure such defect. 1 W. Saunders, p. 227, and the authorities there collected. Much less will such a defect be cured at common law, by judgment, by nil dicit or default. 1 Bac. Ab. p. 202.
    Nor is such a defect cured by our statute of jeofails. The expression in the sttute, which will, doubtless, be relied on by the opposinng counsel, is briefly this, that all defects whatsoever, in form or substance, in any declaation or pleading, shall be cured after judgment on a verdict, or by nil dicit or default. It is evident that a literal construction of the term, "substance," as used in this expression, would lead to unjust, absurb, and inconvenient consequences. The plaintiff, in his declaration, might assert a claim of the most unreasonable, preposterous, and ridiculous nature: he might allege, for example, that he had assailed the defendant with a view to terrify him and despoil him of his goods, and that in consideration of the plantiff's forbearance to execute his wicked purpose, the defendant promised to pay him a certain sum of money, which he has failed to do, to the damage of the plaintiff; and that therefore he brings his suit. If the defendant, on receiving legal notice of this pretension of the plantiff's, should assume to treat it with contempt, and forthwith dismiss it from his mind, or should he fail to receive any actual notice of it at all, and still be brought constructively into court, as may happen under our present laws, which regulate the modes of serving writs of summons, the court must give a judgment for the plaintiff, and forever close the defendant's tips. But the opinion is not to be endured that the legislature intended to convert our courts of justice into mere machines for giving out decisions, without the exercise of either reason or volition, and without the smallest regard to the distribution of justice.
    Such a construction should be given to a statute as would avoid unjust, absurd, and inconvenient consequences, if from the whole purview of the law, and by giving effect to the words, it can fairly be done. 1 Bac. Ab. Chapter on Statutes. This can fairly be done, in the case of our statute, by giving effect to the words, and by making them apply to a defective statement of title or cause of action, but not to a statement of defective title, or of facts, which cannot constitute a legal cause of action. This is the application of the phrase, substance in pleading, at common law. Bac. Ab. Chapter on Statutes. It will be seen, on examination of the passage which has been already cited from Saunders' Reports, that there may be defects in substance in pleading, which will be cured by judgment on a verdict; while, at the same time, if a defective title should be stated in the declaration, such defect will not be cured by judgment on a verdict. It is manifest, by this, that at the common law, defects in substance in pleading were not referred to statements of defective title.
    The statute of jeofails, of 16 and 17 Car. 2, was enacted for the purpose of adjudging several things in pleading to be form, which were always constured to be matters of substance. 1 Bac. Ab. p. 199, citing 1 Vent. p. 200. And not one of the enumerations that are made in that statute, of defects that will be cured, relates to the title or cause of action; but they all relate to the statement of the title or cause of action. It is manifest, by this, that the term, substance, was construed, at common law, to relate to defective statements of the title.
    By the statute of 4 Ann, it is enacted, "that the judges shall preceed and give judgment according as the very right of the cause and matter of law shall appear unto them, without regarding any imperfection, omission or defect, &c. notwithstanding that such imperfection, omission or defect might have heretofore been taken to be matter of substance, &c." 1 Bac. abr. pages 200, 201. From which it will be gathered that there may be defects in matters of substance along with a good cause of action at the common law: which would be impossible, if defect in substance in pleading were one and the same thing with defective title.
    The construction which is here contended for, may also be fairly given to our statute, from the whole purview of the law. "And the most natural and genuine way of construing a statute, is to construe one part by another part of the same statute, for this best expresseth the meaning of the makers." Bac. Abr. chapter on Statutes. It will be seen, on inspection of the statute, that all the enumerations of defects in pleading that will be cured, relate to the statement of the title, but not one of them relates to the very title. And this shows that the intention of the legislature was to provide against the mischiefs which resulted from a defective statement of a good cause of action. It is moreover, contrary to the dictates of common sense and the natural and usual way of construing, to give to the general clause in our statute, a force of meaning and extent of application, greater than belongs to the several specific enumerations which precede it.
    By the English statute of jeofails the same defects in pleading are cured, alike by judgment, by default and judgment on a ver-
dict; and yet the English courts, in cases of the former kind, will always look to the title of the plaintiff. 1 Bac. Abr. pages 202, and authorities there collected.
    The clause of exceptions contained in our statute, shows there are some defects which will not be cured by judgment on a verdict, or by nil dicit, or default; then the expression, :form or substance in any declaration or pleading," is not of universal application, and is not designed to embrace every thing in an action. Those exceptions in the statute, moreover, are of matters that go to the plaintiff's title or cause of actions from which it may be fairly deduced, that the general clause was designed to relate to the latter case. The exception in the statute of the defect in date, is of the very gist of this cause.

    Work, for defendant in error.
    It is insisted that as to the first error assigned, it is cured by the statute of jeofails. See statute jeofails, How. & Hutch. 591, sec. 14; and in same, 616, sec. 9 See 2 How. Winn v. Levy, 202; a strong case.
    In the case of Ragsdale v. Caldwell, 2 How. 930, it is decided that a judgment shall not be reversed for any error that might have been taken advantage of by demurrer. The error in this case certainly might have been taken advantage of by demurrer. This probably might be called a case of judgment by "nil dicit." The defendant puts in his plea and withdrawing it nil dicit, says nothing further in bar of the action. But from authorities referred to in 3 Howard, 50, Soria v. Planters' Bank. 1. Bacon's Abt. tit. Amendment, and jeofails B. 201. 1 Strange, 78. 2 Strange, 933. 2 Burr, 899. Jacob's Law Dictionary, tit. Judgment, 552. The terms "nil dicit" and "by default: are the same, convertible or correlative terms, and whether the judgment in this case, in strict technical language, be a judgment "by default" or a judgment "by nil dicit," the defect or "insufficient pleading" is cured by the statute of jeofails.
    There is no bill of exceptions; the presumption is in favor of the judgment below. Gridley v. Briggs, ALacoste & Co., 2 How. 833. The court will remember there was also a count in this declaration for money had and received, and a bill of particulars accompanying the same, under which endorsements may have been given in evidence, and if the parties who are the endorsers and denfendants in this suit had taken a deed of trust from Edwards to indemnify them, they were not entitled to any notice, and the court might well give judgment against them on the second count, though the first count was defective. The plaintiff in this case, as may be inferred from the affidavit filed, if the court will look at it, is good evidence of the hand writing of the defendants to the endorsements and that the defendants had a full indemnity for the endorsements, and they then withdrew the plea and let the judgment go by default or by nil dicit. Pease v. Turner, 3 How. 375, as to the right of relying on an endorsement under the common count; as to indemnity, dispensing with the necessity of notice.
    As the court may indulge in every presumption in favor of the judgment below, it may well be presumed that every thing was proven and done to uphold the judgmenton the money count, but it is supposed the statute of jeofails puts that question to rest.
    As to the second error assigned, it is a mere clerical error, for which the court will not reverse the judgment. One part of the record may explain another part, Loper v. The State, 3 Howard, and as the writ was served on all, and it does not appear that any one alone of the defendants pleaded, it must be considered that all did, and that the judgment against all is right, though the clerk has entered it in the singular. The declaration was against three persons. The record says when the judgment was given, "The parties came,? meaning all them of the defendants and the plaintiffs; and when the clerk makes an entry of the motion for a new trial, the expression "defendants" in the plural, is used. These various parts of the record being taken together explain it, and show that it was a judgment against all the defendants.
    When a record shows that the "defendants" appeared, and only part of the defendants are served, the exression, defendants, will relate to such as are served with process, or the expression., defendants or parties, refers to all that are served with process.

Crump v. Bennett, 2 Littell, 214, 3 J. J. Marshall, 499. The expression "parties" in the record, where the judgment is entered, means all the defendants that are served.
    There is no ground for a complaint in this case, that great advantage might be taken of a party by allowing the statute of jeofails to cure such a defect as is alleged in the declaration. This is not a proper argument addressed to this court, if such be the law; but in this case the defendants filed their plea, they appeared, they were in court, and there withdrew ther plea, when the writs were personally served on them. The cases of Winn v. Levy, 2 Howard, 902, and Ragsdale v. Caldwell, same book, 930, are cases w(h)ere the defects are of the most glaring nature, and yet the court held them; cured by the statute of jeofails. Instead of the statutes of jeofails working injustice and oppression, they promote justice by preventing it from being entangled "in a net." See the judicious remarks of Chief Justice Sharkey, in the case of Gridley v. Briggs, Lacoste, &c. 2 Howard S34, "After a party has had an opportunity of making his proper defence, in case he fail to do so, the satute of jeofails is so broad that almost every thing is cured by verdict:" and this judgment stands on the same footing as if there had been a verdict. The party here had an opportunity of making defence, he employed counsel, he filed his plea and withdrew it. Smith v. Warren, 2 Howard S95. See Claiborne v. Planters' Bank, 2 Howard, 727. In this case where there was no personal service of the writ, and where the note came back into the hands of Riddle, the maker, whereby it  was extinguished, yet Claiborne, the endorser, "suffered judgment by default to be taken against him, and therby admitted a cause of action." Here by failing to plead, a party is made to pay a note which was extinguished. The cause now under consideration is infinitely stronger against the defendants that this last one from the book; here the parties were served with process personally, they pleaded and withdrew their plea: it does not appear that the note was extinguished, but it was a good and valid demand.
    If A. sues B. for money had and received, and files his bill of particulars, that he relies on the endorsement of the defendants, the defendant is personallyy served with process, and fails to plead, or pleads and withdraws his plea, will not judgment properly be given against him? This is the state of case in the second count of this action. By the judgment by default the defendants admitted "a cause of action," as stated by this court in Claiborne v. Planters' Bank, before cited.

    Me. Justice Turner:
    On motion by defendant to dismiss the suit. The plaintiffs sued out their writ of error, on the 16th day of March, 1840, and a citation was issued as the law directs. On the 22d day of February, 1840, an act was passed, changing the time of holding this court from the first Monday in December to the first Monday in July, in each and every year. But the act, under the provision of the constitution, did not take effect until sixty days after its approval by the governor, it not being otherwise provided. In the mean time, within the sixty days, what other course had suitors, than to pursue the old law? The change in the law could not be known until weeks after its passage. In this state of things, the act making no specific provision for these cases, what are the rights of the parties? They are entitled to appeals and writs of error, from the circuit to the appellate court, by the law of the land. The plaintiff applied for and sued out his writ accordig to the law. But the term of the court then existing was subsequently abolished by the legislature, and another time appointed.
    Well, after this was known in the state, the plaintiff in error applied for a new citation, to the July term, which was issued and served; and the defendant is there notified of the proper time and place for his appearance. Here is positive notice, besides the constructive notice afforded him by the records and proceedings of the court, where his suit was pending, and where he would necessarily have to apply for execution on his judgment. This, with the writ of error already sued out, was sufficient to bring the cause of the parties legally before this court at its July term. And, it seems it did bring him here; for he has appeared by counsel, and entered his motion to dismiss the cause.
    The third reason assigned is, that there is no certified copy of the writ of error bond in the record. This is no ground for dismissing the writ of error. A writ of error is a matter of right, withough a bond. The bond is given to justify and entitle the party to a supersedeas. There is no motion to dismiss the supersedeas for want of a bond. If there was, the original bond, approved as it is by the clerk who took it, appearing among the papers, is deemed sufficient.
    The question of the insufficiency of the sureties cannot be reached by the present motion.
    It is the opinion of the court, that where the writ of error bond is taken and filed, its appearance in the record is sufficient evidence of its having been approved by the proper authority.
    Motion overruled.

    Mr. Chief Justice Sharkey delivered the opinion of the courts, on the merits.
    The plaintiffs in error were sued as the endorsers of a promissory note, which became due, days of grace included, on the 29th of January, 1837. The note was payable at the Agricultural Bank, and was not protested until the 28th of February, 1837, and so averred in the declaration. The defendants below suffered judgment by default, and now seek to reverse it, because they say the declaration shows no cause of action whatever, inasmuch as it was a condition in the undertaking of the endorsers that the demand should be made at the maturity of the note and notice given, and that inasmuch as the declaration shows no cause of action whatever, the judgment is wholly erroneous, and that is not cured by the statute of jeofails.
    To the truth of the latter proposition we readily assent, if the first be true. However broad our statute of jeofails may be, yet it certainly does not cure every thing. If there be no cause of action whatever stated in the declaration, a verdict does not cure such a defect. There must be some obligation or duty stated which might be a good cause of action. These statutes were evidently designed as statutes of pleading and practice, and although ours may be more comprehensive than the English statutes of jeofails, yet there is no reason  for construing it differently. Under those statutes the uniform rule of construction is, that if the 
plaintiff omits to state any title or cause of action, a verdict will not cure such a defect. 1 Saunders, 228, (Note 1.) The defects enumerated in the statute which are cured by verdict, pertain exclusively to points of pleading, and as the defects so enumerated apply to points in pleading, it is fair to infer that the general provision which, provides that any other defect, in form or substance which might have been taken advantage of by demurrer, was intended to cover any omission in the enumeration, without extending the statute to any subject matter different in character from the previous part of the statute. On this supposition the word "substance" would mean substance in pleading.
    But is it true that the plaintiff has shown no cause of action? We do not think it is. The undertaking of an indorser is conditional. He agrees to pay if he receives of non-payment. The holder agrees to give notice, which is a condition precedent. In pleading, it is usually necessary to aver the performance of precedent conditions; and yet, if they are not averred, it does not always follow that for that reason the judgment will be reversed after verdict. But suppose, in this instance, that it was necessary to aver presentment and notice of the maturity of the note. Has he not done so with sufficient certainity to protect his judgment by default?
    The averment in the declaration is, "that afterwards, when the said promissory note became due and payable according to the tenor and effect thereof, to wit, on the 28th day of February, 1837, the said promissory note was duly presented."  Here is an averment of due presentment, according to the tenor and effect of the note. And if the declaration had stopped here, without stating any day, it seems that according to the authorities this would be sufficient, it is not vitiated by averring the presentment under a scilicit to have been on the 28th day of February. If it was duly presented according to the tenor and effect, such presentment must have been at maturity, which was necessary, may be rejected as surplusage, especially after verdict or judgment by default. In 1 Bacon, 215, 7 ed., it is said, if surplusage is repugnant to what is being alleged, it is void;
    Vol. V.--12
and he puts this case:--"As if in trover the plaintiff declares that he was, on the 4th of March, possessed of goods, and that afterwards, scilicit the 1st of March, they came to hands of the defendant, who converted them." The plaintiff here substantially averred that he presented the note on the 29th of January; and this averment is not destroyed by which follows it.
    The case of Jackson, administratrix, v. Henderson, 3 Leigh, 196, is a decision in point. In an action by the holder against the indorser of a bill of exchange, it was averred that presentatment was made "when the bill became due and payable, according to the tenor and effect thereof, to wit, on the 27th December, 1816, at the Bank of Marietta, in Ohio." The 27th of December was not the third, but the fourth day after the time of payment,and there was no special custom of the bank allowing four days of grace; and yet it was held that the scilicit must be rejected as repugnant to the sufficient averment which preceded it. This was after verdict. In principle, there is no difference between one day and one month; a presentment one day too late would as effectually discharge an indorser, as would a presentment a month too late.
    Now, whatever might have been the fate of this defect on demurrer, it is clearly not such as to justify a reversal of the judgment by default.
    Let the judgment be affirmed.