Townsend v. Jemison. with several other important omissions, this court, by Catron, Justice, remarked,-"Still we are bound to presume, in favor of proceedings in a court having jurisdiction of the parties and subject-matter, that justice was administered in the ordinary form when so much appears as is found in this imperfect record." Again, on a writ of error, many things will always be presumed or intended, in law as well as fact, to have happened, which are not ipsissimis verbis or substantively so set out on the record, but are plainly to be inferred to have happened from what is set out. Cro. Eliz., 467; 4 How., 166. Thus, in this case, numerous circumstances stated on the record, and already referred to, indicate that the demurrer and special plea, if not withdrawn or waived, were actually disposed of. Among them, raising a strong presumption that way, is the fact, that three days elapsed after the pleas and [*720 demurrer were filed, before the trial of the other issue; that within this period the court had time to hear the question of law argued; that it is the usual practice to hear such a question before going to a trial of the facts; and hence, unless the demurrer was waived, that the court, before the trial, did probably hear and decide the demurrer against the defendant. Again, the court would have been still less likely to have proceeded to final judgment without first disposing of the question of law, unless waived or settled either before, at, or after the trial. Such, too, being the duty of the court, they are to be presumed, till the contrary appears, to have done their duty. Wilkes v. Dinsman, ante, 89. Nor is such a presumption here, as some have suggested, against the record; because the record says nothing on the subject. But it is consistent with every thing that is there said, and with what is fairly to be inferred from the whole record, carrying with us the probable idea, in that event, of some omission or misprision by the clerk in noting all which happened. The omission of the clerk to enter on the record the judgment upon the demurrer, or to state its waiver, if it was abandoned, would be merely a clerical mistake; and it is well settled at common law, that a misprision by a clerk, if the case be clearly that alone, though it consist of the omission of an important word or expression, is not a good ground to reverse a judgment, where substance enough appears to show that all which was proper and required was properly done. Willoughby v. Gray, Cro. Eliz.. 467; Weston's case, 11 Mass., 417. The statutes of jeofails usually go still further in rem 1 CITED. Morsell v. Hall, 13 How., 215. Townsend v. Jemison. edying defects after verdicts and judgments. Considering this, under those statutes, as a case of defect or want of form in the entry by the clerk, and not of error in the real doings of the court, the statute of jeofails of the United States, curing all defects or want of form in judgments, is explicit against our reversing this for such a cause. Sec. 32 of Judiciary Act of 1789, 1 Stat. at L., 91. If the State laws are to govern, the words of the statute of jeofails are equally explicit and more minute in Mississippi, in curing such defects, resembling more the English statutes. Hutchinson's Code for Mississippi, 841. It is not a little singular, that the unwillingness in England to have judgments disturbed by writs of error for defects in them or in the prior pleadings, where a verdict of a jury has been rendered for a plaintiff, is such, that something like five or six acts of Parliament were passed before our ancestors emigrated hither, and several more since, to prevent writs of error from being maintained for defects in form, as well as to empower amendments in such *721] cases. See those in 1 Bac. Abr., Amendment and Jeofails; O'Driscoll v. McBurney, 2 Nott. & M. (S. C.), 58. Some of the defects cured seem to be very near as strong as the present case. 11 Coke, 6b; Act of 32 Hen. VIII. c. 30. The difficulty is in deciding "what is substance and what is form," and that is governed by no fixed test, but it is laid down that it "must be determined in every action according to its nature." 1 Bac. Abr., Amendment and Jeofails, E. 1; 1 Saund., 81, n. 1. At common law, defects in collateral pleadings, or other matters not preceding the verdict, and not to be proved in order to get a verdict, were not cured by it. Yet those were cured which related to matters necessary to be shown to get a verdict, and hence, after it, are presumed to have been shown. Renner v. Bank of Columbia, 9 Wheat., 581; Com. Dig., Pleader Count, c. 87; Carson v. Hood, 4 Dall., 108; 1 Sumn., 314; 1 Gall., 261; 1 Wils., 222; Burr., 17, 25; Cotterel v. Cummins et al., 6 Serg. & R. (Pa.), 348; 1 Sumn., 319; 16 Conn., 586; 11 Wend. (N. Y.), 375; 7 Greenl. (Me.), 63. But these defects in collateral matters, as here, when they relate to form, are as fully cured by the statutes of jeofails as those connected with the verdict are by intendment at common law. Stennel v. Hogg, 1 Saund., 228, n. 1; Dale v. Dean, 16 Conn., 579. Any omission like this would certainly be amendable below, and some cases have gone so far as to hold, in error, that any defect amendable below will be considered as actually amended. Cummings v. Lebo, 2 Rawle (Pa.), 23 In conclusion on this point, this court, by Catron, Justice, Townsend v. Jemison. in the writ of error before named, of Stockton et al. v. Bishop (4 How., 164), stated, that "it must be admitted that Congress acted wisely in declaring that no litigant party shall lose his right in law for want of form; and in going one step further, as Congress unquestionably has done, by declaring that, to save the parties' rights, the substance should be infringed on to some extent, when contrasted with modes of proceeding in the English courts, and with their ideas of what is substance." After this, it would seem hypercritical, and contrary to the whole spirit of the statutes of jeofails both of the United States and of Mississippi, to allow an exception so contrary to legal presumption as this to be sustained. Nor does it promote the ends of justice to let parties lie by and not take exceptions, and afterwards reverse judgments for omissions, which, if noticed at the time, would have been corrected. McCready v. James, 6 Whart. (Pa.), 547. And this court, where the issues were three, and the verdict and judgment not separate on each, but general on all, and the objection was taken on the writ of error, in *Roach v. Hulings, 16 Pet., 321, said, by Daniel, Justice,-" Objections of this charac- [*722 ter, that are neither taken at the usual stage of the proceedings nor prominently presented on the face of the record, but which may be sprung upon a party after an apparent waiver of them by an adversary, and still more after a trial upon the merits, can have no claim to the favor of the court, but should be entertained only in obedience to the strictest requirements of law"; and they were in that case accordingly overruled or considered as cured. Another ground for affirming the judgment, which the plaintiff in error cannot easily overcome, is, that if the three counts to which the special plea is filed cannot be sustained, the defendant in error has obtained a verdict on all the counts; thus showing, at least, that there was no valid defence to the others. And if those three were conceded to be bad, the others are good, and, notwithstanding a verdict and judgment on all, the latter must not in such case be reversed on error. By an express statute in Mississippi, passed June 28th, 1842, one good count, though others are bad, will sustain a judg ment. Hutch. Code for Miss., ch. 5, art. 1. This is not a peculiarity confined to Mississippi, but a like rule prevails in several other States. 2 Bibb (Ky.), 62; 2 Litt. (Ky.), 100; 2 Bay (S. C.), 204; 2 Hill, 648; 1 Blackf. (Ind.), 12; 1 Stew. (Ala.), 384; 2 Conn., 324. And though in some it is otherwise (1 Cai. (N. Y.), 347; 11 Johns. (N. Y.), 98; 9 Mass. 198), and is otherwise in England (Grant v. Astle, Townsend v. Jemison. Doug., 703), yet it has been regretted by some of her eminent jurists as "inconvenient and ill-judged.' If this provision, then, in Mississippi, should be regarded as a rule of practice, it existed there when the last process act, of May, 1828, passed, and hence, by acts of Congress and the rules of our Circuit Courts, binds them; but if it be a right conferred by her statute, it equally must govern us, by the Judiciary law of 1789, in all cases tried like this in that State. 16 Pet.. 89, 303. But, beside these reasonings and views, to some of which a portion of the court except, there exists another ground for affirming the judgment below, which appears to us fully established both on principle and adjudged cases. The first fault in the pleadings connected with the demurrer seems to have been committed by the defendant himself, and no reason appears on the whole record why the original judgment should not have been rendered against him on that ground. His only defence set up was the statute of frauds and perjuries. This statute was pleaded specially; but, on the facts and the law, it does not seem to have been applicable to the case. The case was a transaction of money paid by the plaintiff on account of the *defendant, and must have been con *723] sidered by the court and jury as done under an original undertaking to repay it in a particular way, which the defendant had not fulfilled, and which was not within the provisions of the statute. The defendant was misled, by the mode of payment being special and to a third person, into an impression that the original promise was to a third person. The suit is not brought by the third person, to whom the original plaintiff owed a debt, nor was the promise made to a third person; but it is brought by the person who advanced money on account of the defendant, on a consideration moving from him alone, and on the promise made to him alone for its payment in a particular manner. See, on this, Read v. Nash, 1 Wils., 305; 2 Leigh, N. P., 1031; King v. Despard, 5 Wend. (N. Y.), 277; Towne v. Grover, 9 Pick. (Mass.), 306; Hodgson v. Anderson, 3 Barn. & C., 842. This was virtually, therefore, an undertaking by the defendant to pay his own debt, but simply specifying a particular manner of doing it; and unless it was found at the trial that the statute of frauds did not apply, it is to be presumed that a recovery would not have been had before the jury, where it was competent to make this an objection. The matter of the plea, then, having been clearly bad, it appears to be well settled, that, when a demurrer is filed to a replication, if the plea is bad, judgment ought to be given for Townsend v. Jemison. the plaintiff. Anon., 2 Wils., 150; Semble, Moor, 692; Com. Dig., Pleader, Proceedings in Error, 3 B., 16; 1 Lev., 181. The whole record connected with the demurrer is open on the writ of error, and judgment goes against the earliest fault. 1 Ill., 207; Morgan v. Morgan, 4 Gill & J. (Md.), 395. In regard to the suggestion, that the demurrer might have applied to some other objection than the statute of frauds, either in the plea, or, going back to the declaration, some defect there (as the first defect bad on general demurrer is the fatal one, 1 Chit. Pl., 647), it is enough to say that no other appears, then or now, to have been pointed out, and none is intimated in the argument for the plaintiff in error. It is very doubtful, also, if, in this particular case, a defect in the declaration would be considered at all on this demurrer, as the general issue is pleaded to all of the declaration covering these three special counts. And an issue in fact and a demurrer cannot both be allowed to reach the same count. Bac. Abr., Pleas and Pleading, n. 1; 2 Blackf. (Ind.), 34; 5 Wend. (N. Y.), 104. If there be an exception to this rule, it must be by some local law or practice not existing here. 1 Litt. (Ky.), 4; 4 Munf. (Va.), 104. From the whole record, therefore, it appears that the judgment below in favor of the plaintiff was probably correct, even if the demurrer had not been waived, and in this event it is clear that the judgment should not, on this [*724 writ of error, be reversed. Hob., 56; Com. Dig., Pleader, Demurrer, Q., 2; Saunders v. Johnson, 1 Bibb (Ky.), 322; 6 T. B. Mon. (Ky.), 295, 606; Phelps v. Taylor, 4 Id., 170; Semble, 3 Bibb (Ky.), 225; Me Waters v. Draper, 5 T. B. Mon. (Ky.), 496; Hard. (Ky.), 164. In Foster v. Jackson, Hob., 56, the opinion says, "It is the office of the court to judge the law upon the whole record." The other cases cited show, that in writs of error, as well as demurrers, the same rule prevails. The propriety of our conclusions in this case becomes more manifest when we consider that a reversal of the judg ment would be of no use to the original defendant; because, if reversed, the order here could not be to render judgment for the defendant, but to have a record made of the waiver or decision of the demurrer, if either occurred, and if not, then a joinder in demurrer and an opinion below on the question presented by it, and which opinion, as already shown, must probably be for the plaintiff, and then the same judg ment be entered again on the verdict which exists now. |