1. The fact that no replication is put in to two of three
special pleas raising distinct defenses is not a matter for
reversal, the case having been tried below as if the pleadings had
been perfect and in form.
2. Nor that such pleas have concluded to the court instead of to
the country, the matter not having been brought in any way to the
attention of the court below.
3. Nor, under similar omission, that the language of the verdict
in such a case is that we find the "issue," &c., instead of the
"issues."
4. The fact that testimony was objected to and received does not
oblige this
Page 74 U. S. 566
Court to consider it, the record not showing that the objection
was overruled and exception taken.
5. It is not error to refuse to give instructions asked for,
even if correct in point of law, provided those given cover the
entire case and submit it properly to the jury.
6. The overruling of a motion for a new trial cannot be made the
subject of review by this Court.
Cooper sued Laber in the court below. His declaration contained
two counts upon a promissory note made by Laber to a certain
railroad company or its order and endorsed, as was alleged, to the
plaintiff. It contained also the common counts.
The defendant pleaded the general issue and three special
pleas.
The first averred that there was no consideration for the note
and that it was obtained from the defendant by fraudulent
misrepresentations, and that these facts were known to the
plaintiff when he took it.
The second denied the endorsement of the note as averred in the
first count.
The third was to the same effect as to the endorsement averred
in the second count.
All the special pleas, though thus denying only what the
plaintiff alleged and not containing either new matter or a special
traverse, concluded with a verification, and not to the
country.
To the first of them the plaintiff replied denying his alleged
knowledge of fraudulent misrepresentations. To the second and third
no replications were filed. With the pleadings in this state, the
case went to trial and was tried as if the pleadings had been in
form and perfect.
Among the testimony given by the defendant relating to both the
allegation of fraudulent misrepresentation and to the matter of
endorsement was that of one Durand. The admission of part of this
(not necessary to be stated, in view of the decision of this Court
that it was not properly
Page 74 U. S. 567
brought before it), was objected to by the defendant, but it was
nevertheless admitted, and this was all that the bill of exceptions
disclosed about the matter. No exception to it appeared on the
bill.
A request for certain specific instructions, as the record
showed, was made by the defendants. The court refused to give them,
but charged the jury clearly upon the whole case, fully presenting
in the charge its views upon both the subjects presented by the
special pleas, and which were in fact the only grounds of the
controversy. It is not necessary for the reporter to state the case
at large on which the charge was given, nor the instructions asked,
nor the charge itself, this Court considering [
Footnote 1] that the report would shed no new
light on any legal principle.
The language of the verdict was thus:
"We, the jury, find the issue for the plaintiff, and assess his
damages to the sum of $7,192."
A motion for a new trial was made and overruled and judgment
entered upon the verdict.
The defendant excepted to the refusal to charge as prayed, to
different passages in the charge as given, and to the overruling of
his motion for a new trial.
The record contained a hundred and seventy-five pages, of which
more than four-sevenths was taken up by the bill of exceptions.
Page 74 U. S. 568
MR. JUSTICE SWAYNE delivered the opinion of the Court.
In this case the bill of exceptions furnishes the same ground of
complaint, which was remarked upon in
Lincoln v. Claflin,
[
Footnote 2] heretofore decided
at this term. In the case before us, it fills an hundred and
twenty-seven printed pages. The points arising for our
consideration could have been better presented in a very small part
of this space. Such a mass of unnecessary matter has a tendency to
involve what is really important in obscurity and confusion. Its
presence is a violation of the fourth rule of this Court. Its
examination consumes our time, increases our labor, and can
subserve no useful purpose. The subject was so fully considered in
the case referred to that we deem it unnecessary to pursue it
further upon this occasion.
Winnowing away the chaff, we find the questions left for our
examination neither numerous nor difficult of solution.
The declaration contains two counts upon a promissory note, made
by Laber to the Racine and Milwaukee Railroad Company, or order,
for $3,700, dated the 6th of May, 1856, payable five years from the
10th of May, in that year, with interest at the rate of ten percent
per annum, payable annually, on the 10th of May, principal and
interest payable at the office of the company, in the City of
Racine in the State of Wisconsin and endorsed by the payee, by H.
S. Durand, its president, to the plaintiff. The declaration
contains also the common counts.
The defendant pleaded the general issue and three special
pleas.
Page 74 U. S. 569
The first special plea avers that the note and a mortgage
securing its payment were given to the railroad company for
thirty-seven shares of its capital stock, that there was no
consideration for the note, that it was obtained from the defendant
by false and fraudulent representations, and that these facts were
known to the plaintiff when the note came into his possession. The
second special plea denies the endorsement of the note to the
plaintiff as averred in the first count. The third special plea is
to the same effect as to the endorsement averred in the second
count. All the special pleas conclude with a verification.
To the first of the special pleas the plaintiff replied denying
knowledge of the alleged false and fraudulent representations
before and at the time of the endorsement and transfer of the note.
To the second and third special pleas no replications were
filed.
The cause proceeded to trial. The record shows that a large mass
of testimony was given by the defendant relating to both the
defenses set up by the special pleas. A prayer for instructions was
submitted by the defendant. The court refused to give them, but
charged the jury full upon the whole case. Both the subjects
presented by the special pleas were fully discussed. Indeed, they
were the only grounds of the controversy between the parties. The
case was tried in all respects as if the pleadings had been formal
and perfect. The jury found for the plaintiff. The language of the
verdict is "We, the jury, find the issue for the plaintiff, and
assess his damages," &c. The defendant moved for a new trial.
The motion was overruled and judgment entered upon the verdict. The
defendant excepted to the refusal to charge as prayed, to twelve
passages in the charge as given, and to the overruling of his
motion for a new trial.
1. It is objected as an error that no replication was put in to
the pleas denying the endorsement of the note.
The plea of the general issue would have made it incumbent upon
the plaintiff to prove the endorsement was averred in the
declaration, but that the statute of Illinois, adopted
Page 74 U. S. 570
by the circuit court as a rule of practice, dispenses with such
proof unless the fact is denied by the defendant under oath. The
oath of the defendant was affixed to both the pleas, raising the
question. As they only denied what the plaintiff had alleged,
contained no new matter, and no special traverse, they should have
concluded to the country, and not to the court. The defect was one
of form, and could have been reached by a special demurrer. The
trial proceeded as if they had concluded to the country, and a
similiter had been added by the plaintiff. To the objection now
taken, there are several answers. The irregularity is cured by the
trial and verdict. [
Footnote 3]
The objection comes too late; not having been made in the court
below, it cannot be made here. It is within the thirty-second
section of the Judiciary Act of 1789, which forbids a judgment to
be reversed for any want of form in the proceedings except such as
shall have been specially pointed out by demurrer.
2. It is said that, conceding the issues intended to be made by
the defendant were in fact submitted to the jury, the verdict does
not respond to them; that it finds "the issue" -- but one -- and
not designating which one, for the plaintiff.
It was competent for the court to amend the verdict by changing
the term "issue" from the singular to the plural. This would have
removed the ground of the objection. A verdict, unless it be a
special one, is always amendable by the notes of the judge.
[
Footnote 4] The proper
amendment would doubtless have been made below if the attention of
the court had been called to the subject. Like the preceding
objection, it is made here too late, and is within the act of
Congress referred to, upon the subject of jeofails.
3. Upon looking through the testimony of Durand as set out in
the bill of exceptions, it appears that the admission
Page 74 U. S. 571
of a part of it was objected to by the defendant, but it does
not appear that the objection was overruled and exception taken. It
only appears that the testimony was admitted after the objection
was made.
Non constat but that the objection was waived or
the decision acquiesced in. In order to make such a point
available, it is necessary that an exception should be distinctly
taken and placed upon the record.
4. It was not error for the court to refuse to give the
instructions asked for by the defendant, even if correct in point
of law, provided those given covered the entire case and submitted
it properly to the jury. The defenses of false and fraudulent
representations to the defendant and of the non-endorsement of the
note involved mixed questions of law and fact. We think the law was
properly stated by the judge and the facts fairly submitted to the
jury. The charge was full and able. It would throw no new light
upon any legal principle, and could be productive of no benefit, to
examine in detail each of the numerous passages taken from the
charge and made the subject of exception. It is sufficient to say
that after a careful examination of all of them in the light of the
context of the charge and of the evidence as it was before the
jury, we have found nothing which we deem erroneous.
5. An exception to the overruling of the motion for a new trial
is found in the record, but is not adverted to in the argument
submitted for the plaintiff in error. Such a decision cannot be
made the subject of review by this Court.
The judgment below is affirmed.
[
Footnote 1]
See infra, p. <|74 U.S. 571|>571.
[
Footnote 2]
Supra, p. <|74 U.S. 132|>132.
[
Footnote 3]
Coan v. Whitmore, 12 Johnson 353;
Brazzel &
Hawkins v. Usher, Breese 14;
Stone v. Van Curler, 2
Vt. 115;
Sullivan v. Dollins, 13 Ill. 88;
Coutch v.
Barton, 1 Morris 354.
[
Footnote 4]
1 Chitty's Pleading 411;
Roulain v. McDowall, 1 Bay
490;
Norris v. Durham, 9 Cowen 151;
Sayre v.
Jewett, 12 Wendell 135;
Paul v. Harden, 9 Sergeant
& Rawle 23.
