US SUPREME COURT DECISIONS

Although as a general rule all issues, whether of law or fact, ought to be disposed of in some way by the court below, yet, under the particular circumstances of this case, which presented the appearance upon the record of a demurrer which had not been disposed of, this Court will presume that the demurrer had been withdrawn or overruled.

The thirty-second section of the Judiciary Act, 1 Stat. 91, forbids a reversal of the judgment on account of the omission of the clerk to record such waiver or overruling.

The statutes of jeofails examined.

Where there are special and general counts in a declaration, and a demurrer is filed which affects only the special counts, and the party goes to trial upon the general issue plea to the general counts, a verdict and judgment so obtained will not be set aside because the demurrer was undisposed of. A statute of Mississippi, where the cause was tried, allows one good count to sustain a judgment.

Where the plea was bad, and the demurrer was to a replication to this bad plea, the first fault in pleading was committed by the defendant, and judgment against him was properly given.

This was a suit brought by Jemison against Townsend to recover a sum of money which Jemison had paid for him to the Mississippi Union Bank, at Macon. The consideration appears to have been, that Townsend should take up a note at the Commercial Bank of Columbus, for which he, Townsend, was bound for one John B. Jones, but in what manner Townsend's taking up the latter note would benefit Jemison did not appear from any part of the record. chanrobles.com-red

Page 48 U. S. 707

On 21 May, 1842, the suit was commenced by issuing a summons, which was endorsed as follows:

"This action of assumpsit is brought to recover the sum of $4,000, with interest at 10 percent (paid for defendant) from 27 January, 1840, to Mississippi Union Bank; defendant agreed to pay for plaintiff same amount in the Commercial Bank of Columbus, Mississippi, in consideration that plaintiff would pay same amount for him to the Mississippi Union Bank at Macon; this action is brought to recover said sum of money, defendant having failed to comply with his promise."

"HARRIS & HARRISON, Plaintiff's Attorneys"

The declaration originally filed was amended, and on 6 December, 1842, the amended declaration was filed, which contained three special counts and the general money counts. The first of the three special counts was as follows, the other two being similar in substance.

"Robert Jemison, who is a citizen of the State of Alabama, by leave of the court for that purpose first had and obtained, by attorney, complains of Thomas Townsend, who is a citizen of the Northern District of the State of Mississippi, and who was summoned to answer the said plaintiff of a plea of trespass on the case in assumpsit. For that whereas, heretofore, to-wit, on 20 March, A.D. 1840, at, to-wit, in said district, in consideration that the said defendant was then and there bound, and liable by note in writing, to the Commercial Bank of Columbus, Mississippi, for one John B. Jones, as his security for about the sum of nine thousand eight hundred and six 50/100 dollars, besides interest thereon; and was also indebted to the Mississippi Union Bank, at its branch in Macon, in the county of Noxubee, about the sum of three thousand dollars, on a note of four thousand dollars, executed by the said defendant and others, payable at Jackson, at the banking house of the said Mississippi Union Bank at Jackson, and in consideration that the said plaintiff would take up the said last-mentioned note to the Mississippi Union Bank, and would also take up the note of the said Jones in the Commercial Bank of Columbus, Mississippi, on which the said Townsend was liable as security as aforesaid, except an amount equal to the amount of said Townsend's liability to the said Mississippi Union Bank, and release the said Townsend from the balance of his said liability to the said Commercial Bank, he, the said defendant, then and there agreed with the said plaintiff, to pay on his said liability, in the said Commercial Bank of Columbus, Mississippi, the same amount which the said plaintiff might take up for him, the said Townsend, in the said Mississippi Union Bank.

Page 48 U. S. 708

And the said plaintiff avers that afterwards, to-wit, on 10 May, in the year 1840, he did take up the said Townsend's note, in the said Mississippi Union Bank above stated, according to the said agreement, amounting to the sum of three thousand and ninety 41/100 dollars. And the said plaintiff further avers that he did then and there, to-wit, on the same day and year last named, at, to-wit, in said district, take up the notes of the said John B. Jones, in the said Commercial Bank of Columbus, Mississippi, on which the said Townsend was security as aforesaid, according to his said agreement. And the said plaintiff in fact says,"

&c.

The subsequent pleadings were as follows:

"And the said defendant, by attorney, comes and defends the wrong and injury, when &c., and says he did not undertake or promise in manner and form as the said plaintiff hath above thereof complained against him; and of this he puts himself upon the country &c."

"COCKE, SMITH & GHOLSON, for Defendant"

"And the plaintiff doth the like."

"HARRIS & HARRISON, Plaintiff's Attorneys"

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

"COCKE, SMITH & GHOLSON, for Defendant"

Plaintiff's replication to defendant's above-stated pleas, filed at December term, 1842, in the words and figures following, to-wit: chanrobles.com-red

Page 48 U. S. 709

"The United States of America, district court for Northern District of Mississippi, December term, 1842."

"ROBERT JEMISON"

"v. No. 108"

"THOMAS TOWNSEND"

"And the said plaintiff, as to the said plea of the said defendant by him secondly above pleaded, saith, that he, the said plaintiff, by reason of anything by the said defendant in that plea alleged, ought not to be barred from having or maintaining his aforesaid action thereof against him, the said defendant, because he says that he, the said plaintiff, hath not brought his action to charge the said defendant for the debt of John B. Jones, and for no other purpose whatever, but that the said action is brought to charge the said defendant upon his said several original promises and undertakings, founded upon the said several new and sufficient considerations in the said count of said declaration stated and set forth; and this he prays may be inquired of by the country."

"HARRIS & HARRISON, Plaintiff's Attorneys"

Defendant's demurrer to plaintiff's replication, filed at December term, 1842, in the words and figures following, to-wit:

"And the said defendant saith, that the said replication of the said plaintiff to the said second plea of the said defendant is not sufficient in law for the said plaintiff to have or maintain his action aforesaid; and this he is ready to verify; wherefore he prays judgment &c."

"GHOLSON & SMITH, for Defendant"

In this condition of the pleadings, it appeared by the record that the parties went to trial, when the jury found a verdict for the plaintiff, assessing his damages at $3,451.88.

The trial took place on the 12th of December, 1842.

An execution was issued upon the judgment, then an alias, a pluries, and an alias pluries.

On 5 June, 1845, a writ of error was sued out which brought the case up to this Court. chanrobles.com-red

Page 48 U. S. 714