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 and 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 defect is so material that it is not cured by verdict
under the statute of jeofails.
Bad pleas, which are cured by verdict, are those which, although
they would be bad 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 of 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. United States, 2 Wheat. 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 the
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 amended.
Page 45 U. S. 132
This 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 16
September, 1839.
"DISTRICT OF COLUMBIA,"
"
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 Representatives 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 cause to be 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 laws 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
Representatives 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 manner 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,
soon 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, and 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
Page 45 U. S. 133
laws to said 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 1 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 could 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 and 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 1 February, 1839, at the county aforesaid, and on divers
other days and times between that day and the day of the issuing
the writ in this behalf, did wrongfully and injuriously refuse to
deliver or furnish 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 print 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 been 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, trouble, 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 so 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.
Page 45 U. S. 134
The plea was "nonassumpsit," 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 and 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 hath 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 "
"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 of Congress of 14 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 Congress 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
Page 45 U. S. 135
prepared the said laws for said publication, and the said
plaintiff waiting as before for the same, the said Garland was
informed, about 1 January, 1839, of the contract so as aforesaid
verbally made between the said Franklin 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 had 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 clerk 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 cautions 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 14 April, 1842."
"W. CRANCH [SEAL]"
"B. THRUSTON [SEAL]"
"JAS. S. MORSELL [SEAL]"
Page 45 U. S. 136
"2d Exception. And thereupon the 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]"
Page 45 U. S. 143
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
back 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 be
taken by counsel which could have been taken below.
Roach v.
Hulings, 16 Pet. 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;
41 U. S. 16 Pet.
319.
In
United States v. Burnham, 1 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 mere 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 v.
Nixon, 9 Pet. 483,
34 U. S.
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 plaintiff, 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
Page 45 U. S. 144
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 being "not guilty," as
was proper in such case (Com.Dig.
Pleader), is
nonassumpsit, 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 treatises 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
nonassumpsit 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 tort and in contract. 1 Chit.Plead 418, 229.
Because, when in tort or
ex delictu, a setoff is not
admissible, nor can infancy be pleaded as to one
ex
contractu, nor can a plea in abatement be sustained that all
concerned in the wrong are not joined, as it may be in counts on
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 625, note; 4 D. & E.
794; 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; 6
Mod. 1; Com.Dig.
Pleader, R. 18; 6 Johns. 1.
Page 45 U. S. 145
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 24,
1789, and is similar to that in the 32 Henry 8, 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 is denied, 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.
Franklin, 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
nonassumpsit
to an
Page 45 U. S. 146
action of debt is not thus cured,
Brennan v. Egan, 4
Taunt. 164;
Penfold v. Hawkins, 2 Maule & Selw. 606,
because it covers too little or is irrelevant. While, in pursuance
of the same rule, 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. & R. 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 which 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' definition in
Bennet v.
Holbech, 2 Saunders 319
a. 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 the parties to give judgment."
So in
Benden v. Manning, 2 N.H. 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 5 December, the defendant
pleaded payment on 5 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 assignment
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.
Page 45 U. S. 147
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' Notes,
125, before cited, this very point was decided.
Non
assumpsit was pleaded to an action on the case (
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' 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,
41
U. S. 16 Pet. 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.
Stearns v.
Barrett, 1 Mason 170, and 2 Mason 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
Page 45 U. S. 148
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 v.
Nixon, 9 Pet. 484.
There are many cases showing that the evidence must be limited
to the plea.
Mar. Ins. Company v.
Hodgson, 6 Cranch 206;
17 U. S. 4 Wheat.
64, in case of the
Divina Pastora. The Court said you must
"not admit the introduction of evidence varying from the facts
alleged."
34 U. S. 9 Pet.
484. The probata should conform to the allegata.
Boone v.
Chiles, 10 Pet. 177.
In
Barnes v.
Williams, 11 Wheat. 415, 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 then to show the difficulties in
forming an opinion on anything 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 correct -- then we should be
called upon to render judgment against Garland merely on such
promise and a breach of it.
That is everything 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, 8
Cowen
Page 45 U. S. 149
191;
2 U. S. 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. 272,
quaere 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 this 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 N.H. 88;
Kendall v.
Stokes, 3 How. 98; 11 Johns. 114; 2 Ld.Raym. 938,
are liable in tort for misfeasances, whenever they are 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 v.
Barreme, 2 Cranch 170; 13 Johns. 141;
Tracy v.
Swartwout, 10 Pet. 95, though others consist of
unsuccessful attempts to charge persons in tort for matters which
originated and existed in fact only as contracts,
Bristow v.
Eastman, 1 Esp.N.P. 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 plea
or verdict is radically defective, judgment ought to be rendered,
notwithstanding the verdict, for the party
Page 45 U. S. 150
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 textbooks 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. note, 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, 5 Pet. 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 Maule & 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 anything,
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 show the defendant to be without any good defense. On the
contrary, a defense appears which the original defendant seems
always
Page 45 U. S. 151
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 "slip," 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. p.
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 repleaders. 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 in 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 manner 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 times 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 forever 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
Page 45 U. S. 152
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 subtleties 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 Pl. 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 may be 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, p. 508, says in a note:
"The true answer to this inquiry appears to be, that the
awarding a repleader 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 indulgence 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
probably 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 subject
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 judicis est ampliare justitiam, non
jurisdictionem." There, after verdict for the plaintiff, he
allowed an amendment of
Page 45 U. S. 153
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 was 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 that 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 and Wyndham wholly agreed, and awarded a
repleader."
In
Simonton v.
Winter, 5 Pet. 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
22 U. S. 9
Wheat. 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 are 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 v.
Nixon, 9 Pet. 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 has 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
Page 45 U. S. 154
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 ed. 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 repleaders. In
17 U. S. 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 be 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
v. Nixon, 9 Pet. 483.
In cases at common law, the form is usually somewhat different.
In
30 U. S. 5 Pet.
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 Pet. 125, JUSTICE WAYNE says -- "A
venire 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 15 U. S. 2
Wheat. 226;
Barnes v.
Williams, 11 Wheat. 415;
Bellows v. Hallowell
& 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
leave 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
22 U. S. 9
Wheat. 540.
See on this further 10 U. S. Ins.
Co. v. Hodgson, 6 Cranch 218;
11 U. S. 7 Cranch
47, 497;
13 U. S. 9 Cranch
244;
14 U. S. 10
Cranch 449;
41 U. S. 16 Pet.
319;
Moody v. Keener, 9 Porter 252.
Page 45 U. S. 155
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 the
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.
