Tittle v. Bonner

Campbell, J., delivered the opinion of the court. Bonner brought an action of assumpsit on a bill of exchange against Howell, as drawer, and. Tittle, as acceptor. At the appearance term HoAvell pleaded non assumpsit, and a special plea, averring that said bill of exchange was, to a large extent, for usurious and compound interest. The plaintiff demurred to this special plea. The record does not show any formal disposition of the demurrer, but at the next term of the court a plea was filed by HoAvell, apparently as a substitute for the plea demurred to. The record does not show any leave of court to file this plea at the second term, but it was treated as properly filed, and must be regarded as amounting to a confession of the demurrer to the first special plea. Shirley v. Fearne, 33 Miss. 653; Georgia Home Ins. Co. v. Jones, 49 Miss. 80; Wallace v. Okolona Savings Institution, 49 Miss. 616; Phillips v. Cooper, 50 Miss. 722. The defendant should have stood by his plea, and demanded the judgment of the court on its sufficiency. Having presented another plea embodying the same defence as the former, he cannot procure a reversal of the final judgment against him, because of the omission of a formal judgment upon the demurrer to the plea, Avhich demurrer he virtually confessed, by resorting to his second special plea. Reversals of judgments are now made only for matters of substance, and not on frivolous grounds. The omission to give judgment sustaining a demurrer admitted to be well taken, is not to the prejudice of the party whose pleading was demurrable, and, therefore, is not error. The special plea of Howell, filed at the second term, was [584] demurred to, and the demurrer was sustained, and leave given to the defendant.to amend. He filed another plea, which was demurred to, and the demurrer was sustained. No leave was given to the defendant to plead over, and there was no further pleading by him, and no application for leave to plead further. These several special pleas were bad, because, while professing to answer the whole cause of action, they contained only what purported to be a partial defence. That defence is, that the bill of exchange sued on is for too much, because it embraces usurious interest, and for that reason all of the amount claimed is not recoverable. A plea professing to answer the whole declaration, and answering only a part, is demurrable. 1 Chitty Plead. 524; Holcomb v. Mason, 35 Miss. 698. Only the excess over lawful interest can be avoided for usury, and the way to plead in such case is to limit the plea to such part as the defendant is entitled to avoid, so that the plaintiff may be able to take judgment nil dicit for all not denied. Tittle, the other defendant, pleaded non assumpsit, and four special pleas. The special pleas were demurred to in one demurrer, and the demurrer was sustained as to all except the fourth, as to which it was overruled. The pleas to which the demurrer was sustained were'bad, — the fifth, for the reason herein applied to the special pleas of Howell, and the third, because it avers that the plaintiff procured the acceptance of the defendant by fraud and misrepresentation, without stating any facts to enable the court to say whether they were sufficient to avoid the acceptance, and to apprise the plaintiff of the particular defence sought to be availed of. It is laid down by Chitty that “ a general plea that a deed was ‘ obtained by the plaintiff by fraud and misrepresentation ’ has been holden sufficient, on the ground that fraud usually consists of a multiplicity of circumstances, and, therefore, it might be inconvenient to require them to be particularly set forth.” 1 Chitty Plead. 537. In Christmas v. Russell, 5 Wall. 290, a plea “ that the judgment was procured by the fraud of the plaintiff” was held to be “ well enough under a general demurrer.” [585] The note to the text of Chitty, quoted above, shows that a plea of fraud, without setting forth the particular acts constituting it, has been held bad. In Matlock v. Livingston, 9 S. & M. 489, a plea “ that the said note was executed without any consideration good or valuable in law ” was held good on general demurrer; and this was followed, without comment, in Taylor v. McNairy, 42 Miss. 276. Since the adoption of the Code of 1857, which in this respect was followed by the Code of 1871, such general pleading, as above stated, is not admissible. Our statutes were intended to correct the evil which resulted from the general form of pleading before prevalent, and to require every affirmative matter to be pleaded specially or given notice of, so as to distinctly inform the opposite party of the precise ground of contest on which he is to be met by his adversary. Code, § 599. The plaintiff must state the facts revealing the actual cause of complaint. Code, § 577. And the defendant must show by his plea the actual ground of his defence. Code, § 592. Every matter of defence, not merely consisting of a denial of the allegations of the declaration, must be pleaded specially, or given notice of under the general issue, or “ no proof- of such matters shall he received on the trial.” Code, § 599. The framers of our present law of pleading, as regulated by statute, had in view the valuable improvements introduced by the courts of England by the Reg. Gen.,.Hil. T. 4 Will. IV.; and the statutes on the subject should be so applied as to effectuate the object in view. The true object of pleading is to apprise the adverse party of what he is called upon to answer, in order that he may be prepared to contest it, and may not be taken by surprise ; and any pleading which falls short of this is bad. A plea averring fraud and misrepresentation, without any indication of the particulars in which it is said to consist, is bad on demurrer. Herndon v. Henderson, 41 Miss. 584; Hanks v. Neal, 44 Miss. 212. The second plea of Tittle was bad, because it alleges no consideration to the defendant for accepting, and does not state affirmatively how there was no consideration, and does not negative the idea that there was some benefit or advantage to [586] the drawer of the bill of exchange, at whose request it was accepted. 1 Chitty Plead. 517, note i. The plaintiff replied to Tittle’s fourth plea; and Tittle demurred to the replication. His demurrer was properly overruled. The judgment on this demurrer did not give Tittle leave to rejoin, nor did he ask it; and there was no rejoinder, but judgment was taken nil dicit on the replication unanswered ; and, as the defendant had pleaded the general issue, a trial was had on this before the court, and the finding and judgment were for the plaintiff. A motion for new trial was made, and overruled; but no bill of exceptions was signed, and the case is before us on writ of error. Numerous grounds of error have been assigned; but, while all have been fully considered, very few need be specially mentioned. What has been said disposes of all questions as to the sufficiency of pleadings. It is assigned for error that, on sustaining the plaintiff’s demurrer to Howell’s second plea, amended after one demurrer sustained to it, the judgment should have been respondeat ouster. This is not correct. Code, § 618. Another ground of error is, that, on overruling' the defendant’s demurrer to the replication to his fourth plea, the judgment should have been respondeat ouster. Not so. It should have been nil dieit, if the defendant did not obtain leave, and rejoin. A demurrer to a declaration overruled is followed by judgment quod recuperet, unless the “ defendant make oath that he hath a good and substantial defence,” and obtain leave to plead. Code, § 612. A demurrer to a replication is followed, when overruled, by judgment final as to that issue, unless the defendant asks and obtains leave to plead, and pleads over. Another complaint is, that, on overruling the plaintiff’s demurrer to the defendant Tittle’s fourth plea, the court did not give judgment nil capiat against the plaintiff, but gave him leave to reply to the plea. In such case, the judgment is not required to be respondeat ouster; but it is not error to grant leave to the plaintiff to reply. Hardin v. Pelan, 41 Miss. 112. It is said that, because the demurrer was held not well taken as to one of several pleas, it should have been overruled, although some of the pleas were bad. Undoubtedly, one good [587] plea to tbe whole action, is as complete a bar as a dozen pleas; and if, on demurrer to several pleas, one is held good as to the whole cause of action, it will entitle the defendant to judgment against the plaintiff nil capiat, if the plaintiff shall not obtain leave, and reply to such plea; but no reason is perceived why a demurrer to several pleas, some good and some bad, should not be sustained as to the bad, and overruled as to the good. This practice has prevailed in our courts, and has been sanctioned elsewhere, and meets our approval. Gearhart v. Olmstead, 7 Dana (Ky.), 441. We do not perceive any error in the record for which the judgment should be reversed, and it is Affirmed.