Shropshire v. Judge of Probate

Mr. Justice Trotter delivered the opinion of the court. The first assignment of error is the judgment of the court setting aside the verdict and granting a new trial. The bill of exceptions taken at the time, embodies the whole of the evidence upon which the verdict was rendered. From this it appears that the plaintiff, in support of his action, introduced the records of the county and Probate court of Amite county, showing the report of the referees allowing the plaintiffs claim, and the decree of that court requiring the defendants to pay it. In answer to this proof, the defendants introduced several witnesses to impeach the note which was the foundation of the claim sued on, some of whom testified that they did not believe the same was made by the defendant intestate. The record states the evidence for and against the validity of the note Avhich Avas before the referees, by which we are informed that the same question was fully examined by them, and that they made their decision in full view of all the proof Avhich was carried before the jury. This evidence was Avholly inadmissible on the trial in the circuit court. The note was not the foundation of the action. As an evidence of a debt due to the plaintiff, it had been merged in the decree of the county and probate court. This decree was a higher evidence, and constituted a debt of record. The allowance made by the referees concluded any farther examination into its validity. It became res adjudiccita, and therefore conclusive evidence in an original suit. The decision of the referees alone Avould have entitled it to the sanction of this principle. For a matter is not the less res adjudicata because it is not of record. It has been held that the [152] allowance of a claim by the commissioners of bankrupts is conclusive evidence, Brown v. Bullen, Douglas 407. And in Moody and Thruston, Strange 481, where under an act for stating the debts of the army, the commissioners had power to call the officers and agents before them, and in case they found money due from one to the other to give a certificate, &c. The plaintiff produced his certificate, but the defendant tendered his accounts offering to show no money was due, and complained of the conduct of the commissioners, who he said had refused to hear him. But the court were unanimous in the opinion that the certificate was conclusive. The effect of the decision of the referees in this case is, however, greatly increased, by its approval in the orphan’s court, and the decree then rendered requiring the defendants to pay the claim. It is then the judgment of a court of competent jurisdiction, and as such is binding and conclusive between the same parties. Starkie’s Evi. 208. We are, therefore, clearly of opinion that the new trial was very properly granted. If the court be correct in these views, they are a complete answer to the second assignment of error, which is founded on the judgment of the court below sustaining the demurrer to the plea of non est factum. The note was not the foundation of the suit, and the plea therefore tendered an immaterial issue. It is urged as another ground of error, that the court below refused the defendants permission to file the plea of nut tiel record. This application was made after the pleadings had been regularly made up, and was therefore addressed to the sound discretion of the court. In the exercise of that discretion, the conduct of the judge is not subject to review in an appellate tribunal. This was in the nature of an application to amend the pleadings, and the judge had a discretion to refuse’or allow it; but the allowance or disallowance of amendments is not ground for error, 3 Com. Dig. 566. 11 Wheat. 280. It is also assigned as error that the judge refused the motion of the defendants for judgment on the plea of covenants performed, to which the plaintiff had not replied, and which he had not otherwise answered. It is undoubtedly error in the court to render judgment for the plaintiff when there is a plea unanswered. This must, however, be understood of a plea which is a valid [153] answer to the cause of action disclosed in the declaration. For if the plea be merely frivolous, and such as the court would on motion strike from the record, the defendants shall not have any benefit from it. This plea was evidently bad, because the plaintiff could not take issue upon it, and if the court had forced him to reply to it, he would have been compelled to repeat his declaration. This point was expressly ruled by the court in the case of the Post-master General v. Cochran, 2 John. Rep. 416. In that case it is decided that where an action of debt is brought upon a bond with a condition, and the plaintiff assigns breaches in his declaration, the defendant is bound to meet them by something more than a plea of general performance. He must .show how, when, and where he performed his -covenants. The same doctrine is laid down by the supreme court of the 'United States in the case of Simonton v. Bowman, 5th Peters’ Rep. 148. To a plea so clearly defective, it was not necessary for the plaintiff to demur. It was not bad because informally pleaded, but because it was incapable of an answer. The remaining assignments of error are answered by the remarks which have been submitted in noticing the question raised by the exceptions to the judgment of the court below granting a new trial. The witnesses, whose evidence was offered on the second trial and rejected by the court, were sought to be introduced, for the purpose solely, of impeaching the promissory note which had been already allowed as a valid claim against the defendants by the referees and the decree of the county and probate court. The court was therefore bound to exclude them. The second bill of exceptions taken by the defendants on the trial below, takes an objection to the instruction of the judge to the jury upon the effect of the plea of payment on the proof necessary to snpport the plaintiff’s cause of action, which cannot be noticed by this court, because no plea of payment is shown upon the record. The opinion of the judge was therefore gratuitous, and whether right or not, is not a question properly before us. The judgment must be affirmed with damages.