-90 CASES IN_ THE- SUP4EME.,COUIVY LITTLE EOVIC, Av'y Ws: EABoN vs.-&seri egasi:Visugg risgitt. ERROR fithri 'Court4 Where profert of an instrument is madein the declarationifi defendintiVint has craved oyer; is entitled to it before he can be-required to answer, But if he plead, he waives hie right to oyer. After an issue of fact is made Up; a party is not, bound to notice ttAelturtee filed to any Previous pleading. A warrant of joinder in demurrer is cured by Verdict. A party may ;add the iimiliter for his adversary; and if they , ge ao trai WitiI7 out it, the objectión is waived., A moartgge is but a collateral eueurity to a bond. It is neither eta higher order, nor a payment of the debt: and a plea which states, not .hr (Brace terms, that the defendant .paid the debt, but that he paid alI the eums foe'- Which the mortgage was given, is bad on general demurrer. Where the facts have been submitted to the-Court, without the intecventicIIV of a jury, it must be inferred, 'in the absence of any shilling 'upon the' reCord to the contrary, that the eiidence introduced was Sufficient to war rant the verdict. Fisher brought his action of debt against Eason, in the Phillip Circuit Court, to the May term, 1834, in an action Of debt' upon a writing obligatory executed by Eason to Syltantis Phillips, fot-$1390, due the first day of March, 1831, and assigned to Fidier, by PhilliPS, September 21st, 1830. At the November term, 1834, Eason appeared and filed his prayet of oyer ; his first plea, of nil debet, his second plea, denying the assignment, and his third plea, setting up 'the following fads: That on the 22d of February, 1830, ho: also executed to said Fut,- lips a mortgage. or deed of -ttust, to a certain piece of land thereim mentioned, to secure the payment of the Writing in the declaration mentioned, together with others; that on the 22d day of Septembes, 1830, and before any assignment had _been made:on said deed of trust or mortgage, he paid to and satisfied Phillips " all and -evety stun or sums of money for which tile said Tmortgage or deed of trust was given;" and that satisfaction had been andotsedon said deed of trust or mortgage, by . the Clerk of said court; order . of twit Phillips, under the seal of the court and the hand of the Clerki con--Chiding with 4 verification. At the November tetm, 1835, the defendant demurred to`the pralo7 tifr's declaration, aitil at the'same time the plainfiff demutied to .de7- fendant's third plea. The defendant then withdrew his first
OF THE STATE . OF ARKANSAS. 91. issue was taken on the second, and the demurrer to the third sustained, LITTLE and leave given to interpose a plea of payment: and thereupon !a R :1 1 8 C 3 , 8 . the case was submitted to the court, and the plaintiff; Fisher, had EAsON a. verdict and judgment. FISHER. HORNIER, for the plaintiff in erior: The.first cause of error assign-° ed is, that oyer was prayed and not granted. The instrument de,. dared upon is under seal and made profert of ; therefore the defendant had a right to oyer, and having craved it before any other plea pleaded, neither the plaintiff nor the court had a right to withhold it. See Tidd's Practice, 526, &c. And the defendant having afterwards. filed othei pleas, does not justify the withholding oyer from him. See also 1 Chit. 416; Howe's Prac. 420. The second error assigned is, that no disposal was made of the demurrer to the plaintiff's declaration. A . demurrer, like all other pleas, having been filed, must be withdrawn, avoided, or answered; - neither of which was done in this case, and therefore it is error. 1st: Chit. 656-7; . Howe's Practice, '220. The third error assigned is, that the demurrer of the plaintiff' to - defendant's third plea was heard, determined, and sustained', withOut having been joined in or responded to. This was certainly error, because if the defendant would not join, the plaintiff might have stricken out the plea or moved the court to do so. But the court had - no right to try an issue never made by the parties, and it was error-- SO to do. And if the court had the right to try the law arising upon this demUrrer without joinder, why should not the same rule apply to the defendant's demurrer to plaintiff's declaration? 1 Chit. 656-7; Howe's Prac. 420; 1 Tidd,105. The fourth error assigned is, that the third plea of the defendant was overruled. This was a plea of payment and satisfaction, specially pleaded. It sets out in the first place, that another and higher obligation than that declared upon, had been given for the same debt, to wit, a mortgage upon land; and that that mortgage had never been assigned away, and that payment had , heen made upon the mortgage and full satisfaction entered, which was a discharge of the whole obligation. Why this was not a good plea, we are unable to -see. A man may give several obligations and several securities for the same debt, but the obligee shall have but one satisfaction. As if several billS of exchange be drawn for the same debt, the pay-
92 CASES IN THE SUPREME COURT LIT11.2 ment of one ' is payment of all. So if a boud be given and a bill of . Rom Jan 'y 1838 . exchange drawn to satisfy the bond, payment of the bill is payment EASON and satisfaction of the bond also, and may be pleaded in an aetion FISHER. on the bond; and socif the bond be , paid, in like Manner it might be pleaded to an action on the bill. So if several different individuals go security, all equally liable to be sued, payment by one would be a satisfaction for all, and may be pleaded in an action again g t any one ofthe others. And So in this case a bond was given, and a mod.- gage was given, both for the same debt, and the creditor had the right to sue upon either; if he had sued upon the bond and collected the money by judgment and execution, could not that be pleadedin an action to foreclose the mortgage? And so, on the other hand, if the mortgage be foreclosed, and the debt made by the sale a the land, could not that be pleaded in an action on the bond? The plaintiff certainly could have but one satisfaction. It'may be contended that as the bond does not show that a mortgage had been given for the same debt, the assignee was not presumed to know it. To this we answer that the mortgage did set Out that it was given for the same debt, and the mortgage was of record, and therefore every person knew it. - If, then, Fisher took an assignment of the bond, knowing that there was a mortgage of record for the same debt, and took no, assignment of the mortgage, it was evident that he left the debt to be paid to either party, as the defendant might choose, and plead it in bar of the other. Pr will it be contended that the assigning of the bond by Phillips to Fisher, was an absolute, positive, and entire cancelling of the mortgage? or is it a discharge of the mortgage? If the latter, the defendant bad a right to plead it in satisfaction of the debt. If neither of these be true, then both remedies still exist, and Phillips had a right to sue for a foreclosure of the mortgage and Fisher had a right to sue on the bond, but they could have but one satisfaction, and if -both had the right to sue, the defendant had the right to pay either. And as he had the right, by the terms of the contract as set out in the plaintiff's declaration, to pay on or before the day, he had a right to pay at any time; and as the mortgage was an incumbrance on his land and ati he had no notice of the assignment, (for it is not averred that he had any,) he had a right to pay Phillips and discharge the mertgage and, release his land from the incumbrance and plead that in an action On the bond. Either satkfaction or payment is special matter. and must
OF ME STATE OF A. .ANSAS. 93 be-pleaded specially; for all of which reasons the plea is good, and LITTLE was wrongly-overruled. 1 ROCK, Chit. 480; 1 Tidd, 712-13; Laws of Ar . Jan'y me. kansas, 4M. EASON The fifth en-or assigned is, that after the demurrer had been sus_ Full,. tained -to the third plea, and the plea overruled, leave was given the defendant to enter A plea of payment, which plea was entered short on the record, and the plaintiff neglected to reply thereto. This being an issuable plea, the plaintiff was bound to reply thereto ; and by not doing so, the plea was admitted to be true, and therefore it was error to give judgment against the defendant while this plea stood unContradicted. 1 Chitty 633 and'640. As to payment before or after assignment, Laws Ark's. 74-5, Steele's Dig. The sixth error assigned is, that the judgment was rendered without evidence. The issue made upon the' second plea is, that no assignment had been made by Phillzps to Fisher, as laid in the declaration; • to sustain the declaration under thiS plea, the writing declared upon should have been produced, the assignment shown and proved, and the writing filed with the papers. The issue could be proved in no other way, and the_ giVing judgment without this proof was error. For assignment, Laws of Ark. 74-5 Steele's' Dig. CUMMINS AND PIKE, contra: As to the first asSignment of error, the defendant remarks that from the record it appears that the prayer of -oyer, and the three pleas of the defendant were filed at the same thine. A party who is entitled to oyer, is not bound to answer till it is-granted, if he has demanded it. If he pleads without demanding it, he_ waives his claim to it. Gould's Pl. 439. The reason is, not only that the claim of oyer should be made, by the rules of pleading, at a certain time, but Also because the only purpose in craving oyer is to demur; and after pleading a defendant cannot demur. For the same reason it would seem to follow that if a party pleads, and at the same time prays oyer, his prayer is a nullity. By the common law, if oyer was not granted, the defendant might sigh judgment. By our Statute the same end is attained.- Unless oyer is given in proper time, the plaintiff is precluded finm giving the paper in evidence. Gould, 440; Ark's Dig. 320. If oyer was not granted, the defendant had the right to take advantage of the failure to grant it. Re did not do so. Nor has he filed any hill Of exceptions This court !mist therefore infer that he waived his right to oyer.
94 CASES IN THE SUPREME- COURT r it rze Was oyer denied? By no means. The record does not show it. Jan'y uss. The plaintiff, be it admitted, refused or neglected to give it. This EASON neglect or refusal was not the act of the court. Error can only be for Fa ER, some decision of the court. Had the court refused to permit oyer to be given, and did that fact appear from the record, it would be error. This is not the case. The court never makes an f o r r o d y e e r, unless the right to it is questioned. The copy is generally given voluntarily by one attorney to the other, without the intervention of the court Gould, 439, note; 1 Tidd, 518; Steph. Pl. 87. Every pre-, sumption here, is irf favor of the court below. This court must infer that oyer was given, unless the contrary appear. Gould, 451; I Chit-ty's Pl. 372. .As to the seeond assignment, a party cannot demur and plead at the same time. The demurrer to the declaration in this case was. put in after the pleas were filed, and at the second term. If a party cannot plead and 'demur at the same time, (see Story Pl. 53, 341; Lit. Set. Cas. 509, Patrick vs. Conrad,) as little can he demur after pleading. The demurrer was a mere nullity. It was not necessary for the court to regard it, or make any decision or order about it. A demurrer must be put in before issue joined. Gould, 460, 472. After a party has answered, he cannot be admitted to say that he stops short, because he is not bound to answer. After he has denied the facts and offered an issue, he cannot admit them and say he is not bound to answer. If he does, the court will disregard the demurrer and go on with the case. But the court did decide the demurrer. The plaintiff and defendant both demurred at the same time; one to the plea, and the other to the declaration. The plaintiff's demurrer was sustained. This, of course, decided both demurrers, and the defendant's was overruled; because on a demurrer to the plea, the court looks back to the declaration and gives judgment accordingly. Gould, 474. Besides, this court is never bound to infer that the demurrer was disposed of. 5Litt. 119, Cochran's Ex'rs vs. Davis. Where a plaintiff omitted to waive his demurrer, but went to trial, it was held no ground to reverse the judgment. Story, 368; 9 Mars. Rep. 533. As to the third assignment, a sirniliter and a joinder in demurrer are alike. It was always the practice in England for the clerk to add both. Stepk. on Pl. 281. A similiter may be added after verdict. 1 Chitty 537; 1 Lit. 159. The party who demurs may himself
OF Tilt STATE 01 ? ARKANSAS. . 95 - add the joinder in demurrer. 1 Chitty's Pl. 644. When parties have iATtLk ROCK, gone to triaLon a plea which has not been traverSed, the traverse Jan'y 1838. May be added after verdict. 1 Chitty, 588; 5 Taunton 164. A de- EAgON Murrer t - o the declaration being then pending, it was in fact a joinder Fi sv A R in the demurrer to the plea. As to the fourth assignment, the demurrer to the plea was rightly. - sustained. _The objeet of the plea was simply to set up a payment; because_the mortgage Was neither a higher security, nor a satisfaction for the debt. It was but a collateral security. Considered as a plea be payment, the plea was undoubtedly had. Every plea in bar must be Certain, unambiguotis, and present a distinct issue. This plea is doubtful; ambiguous, uncertain, and not issuable; besides being multifarious, argumentative, and for the most part, surplusage. It does not say in direct terms arid in legal language, with sufficient certainty that • the defendant had paid the debt in the declaration mentioned, or had paid the note.—it only aVers that he had paid alr the money tor which the mortgage was given. This was the issue offered. Was it such an issue as the plaintiff was in law entitled to? See Gould, 735; Stephen, 337; (n) 421, 425, 488. Allowing the ,demurrer to have been wrongly sustained, the defendant has estopped himself from urging this as error. After it was sustained, he asked leave to amend by filing a plea of payment. By so doing he submitted to the judgment of the court sustaining the de-murrer, and withdrew his plea. It r is no longer a part of the record. If three or four declarations or pleas have been demurred to amended in succession, those demurrers cannot be reargued here, it would be a waste of time, and could not be allovved. M to the fifth assignment, the point here raised has , been fully - answered in the remarks on the third assignment. After verdict the traverse may be added. 1 Chitty's Pl. 588; 12 J. R. 353, Coon vs. Whitimore. In the cases mentioned in _ 2d Saunders, 319, n. 6; in Cowp. 407, Sawyer vs. Pocock; and 3 Burr, 1793, Harvey vs. Peake; and other cases referred to, the courts refused to set aside a judgment for want of a similiter. As to the sixth assignment, it is well settled that this court will nov - infer that sufficient evidence was offered to warrant the verdict. Gould,497, 498;- 1 Chitty Pl. 360. That the law is the same where the court sits as a jury, see Lit. Sel. Cas. 351, 353, Vernon vs. Young; 2 J. J. Marsh. 253, Logan vs. Donisshon ; 7 Mon. 454, Ilerndon's
96 CASES IN THE SUPREME COURT kaTTLB Stocx, Ear's vs. Bartlett's Ear's. Errors, in fact, cannot now be taken ad-4081Y 1838. vantage of. This court, after verdict, will suppose every thing to be. rdtison right unless the contrary appear. Story, 72; Stephen 179, 180; 4 1116 Figniza, Mon., 42, Jones vs. Williams; 1 Bibb, 308, kleydon vs. Lockhart's Adm.; 3 Marsh. 222, Mummy vs. Johnston; 1 Marsh. 106, Braxdate vs. Speed; 1 Marsh. 233, Trabue vs. Coleman. The plaintiff in error has no right to assert that the evidence was not offered, unless he has made that fact appear of record, by bill of exceptions, or in some other way. If illegal evidence is admitted; that fact must appear by bill of exceptions; or not being of record, it will not be ground to reverse : Story, 369; which is respectfuly submitted. DICKINSON, Judge, delivered the opinion of the court: This was an action of debt brought on a writing obligatory, by Fisher, as as-signee of Sylvanus Phillips,. against Eason. - In his defence, Eason craved oyer, and filed three pleai. First, nil debet; second, denying the Assignment of said writing; and third, that actio non on the second day of February, 1830, he executed to Phillips a mortgage Or deed of trust on a certain tract of lannying in said county, near the mouth of the river St. Francis, ,to secure the payment of the Writing in the plaintiff's declaration mentioned, (together with twO other notes, all bearing the same date,) by which Said deed of trust or mortgage, he, the said Eason, conveyed to the said Phillips,. his heirs or assigns in trust, to secure the payment of the sum above demanded on said writing, with others, a certain tract of land as aforesaid, containing 640 acres: and the said Eason avers that on the 22d day of September, 1836, without any assignment having been made on said deed of trust or mortgage, and before any assignment had been made upon said writing in said plaintiff's declaration mentioned, he, the said Eason, fully paid to and satisfied him, the said Phil-lips, all and every sum or sums of money for which the said mortgage or deed of trust was given: and he, the said Phillips, to wit, on the said 22d day of September, 1830, at the county aforesaid, caused the Clerk of the Circuit Court to endorse upon said deed of trust or mortgage, that he, the said Phillips, acknowledged the payment of the Money for the said deed of trust or mortgage, and relinquished all his right, title, claim, and interest, of and to the premises mentioned in said deed; which\ said endorsement, so made upon said deed, is under
OF THE STATE OF ARKANSAS. the.seal of Said court, and under the -hand of Austin Rudwicic, then iiiToelK"2 clerk'and ex-officio recorder of said county. Of- all which profert is •Tah'Y , made,.concluding with a verification, &c. 'Afterward§ the parties, tascm by their attorney§; appeared.. The defendant withdrew the pleas of FISHER. nil debet, issue was:taken upon the second, and a demtirrer filed to' the third- ,plea. On argument the demurrer . was snstained; when' leave , was. given the defendant to interpose the plea of payment; of which, however, he did not avail hirnself ; and neither party requiring. a jury, the case was subinitted to the court for trial: whereupon, afterwards,'tha court being suffiCiently advised of the premises,: found 'for the plaintiff, and judgment was entered up accordingly: to reverse which -the defendant in the court below prosecutes hiS w.rit, and assigns for error; first, that having craved oyer of the writing declared on, the court ought to have awarded it. Second, that the-demurrer to the declaration was -not dispo§ed Of. Third, that there was no joinder to plaintiff's , dernurrer. Fourth, that the cOurt erred in sustaining plaintiff's .demurrer. Fifth, no replication to,-or disposition made of, defendant's plea_of payment. Sixth; that on the trial there was no evidence of the assignment, nor wa8 the writing : declared- on par-duced in court. As regards the first assignirient, on profert made as in this .case, the defendant• having craved oyer, was entitled to it before he could-be required to answer; . . as he is supposed to be unable to plead advantageously without it. There is . no evidence that-it was refused-, nor is it necessary to- enquire ;_ for having afterwards filed his pleas the 'action, he thereby waived' all his right to oyer.. See GoUld, 451; 1 Chitty, 372. 2d, The demurrer to which the plaintiff in error. refers, does not appear to_have been either regularly file& or entitle& as of this or any other suit. -As presented to us, it could' have no-bearing upon these parties; . and even' if correct in form, it was too' late. As an issue in- fact had been. made up, the . adverse party . was-not bound to notice it. . 3d, The want of joinder in demurrer is cure& by verdict.. The defendant below might have aded the ‘similiter,- and he waived it by going t9 trial. See Chitty, 587, 644, 588; 5th. Taunton, 164. 4tb, This-assignment demands more serious attention;- for upon it . the defendant below appearS to have placed the most ance; but. Whether the third plea to which the demurrer was sustain- • ed, was intended as a plea of payment or of satisfaction Or both, we have been unable t.o ascertain. It cannot lie considered as a plea
98 CASES IN THE SUPREME COURT LITTLE of payment, and it wants the requisites of the other. ROCK. It sets up- a Jan'y 1838. special defence that a collateral security had been given, which was EASON neither of a higher order nor a payment of the debt. It does not, in v.. FISHER direct terms, assert that Eason paid the debt in the declaration mentioned, but that he had paid all the money for which the mortgage or deed of trust was given. The plea is doubtful, ambiguo . us , and uncertain; and no distinct issue being presented, we think the de-murrer correctly sustained. Stephens on Pl. 421, 425, 488, 387. The fifth assignment is without foundation, the record contains no plea of payment. After the demurrer to the third plea was sustained, leav e was granted the defendant below to interpose the plea of payment, but he did not avail himself .of it. Nor is the sixth objection better taken; for the facts having been submitted to the court without the inte7vention of a jury, we must infer, in the absence of any objection or bill of exceptions to the contrary, that the evidence introdUced was sufficient to justify the finding. Gould,497, 498; 1 Chitty, 360; Story, 72; Sjephens on Pl. 179. -- The judgment of the Circuit Court is therefore affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.