An execution was issued upon the judgment, | fendant from the balance of said debt to the then an alias, a pluries, and an alias pluries.

On the 5th of June, 1845, a writ of error was sued out, which brought the case up to this court.

It was argued by Mr. Cocke for the plaintiff in error. His argument was as follows:

Commercial Bank, defendant agreed with and promised plaintiff to pay, on his, defendant's, liability to the Commercial Bank, the amount which plaintiff might take up for him, defendant, in the Union Bank; and that plaintiff did *take up defendant's note in the [*711 This is a writ of error to the Circuit Court of Union Bank, to the amount of three thousand the United States for the Northern District of and ninety 40 dollars, and did take up said Mississippi. The facts may be briefly stated note to the Commercial Bank, and defendant to be these: Jemison, the defendant in error, has never paid plaintiff nor the Commercial instituted an action of assumpsit in the court Bank. To this count the defendant pleaded below against Townsend, to recover the sum that the plaintiff's action was brought to of three thousand and ninety dollars and forty-charge him upon a promise to pay him the one cents, which Jemison paid for Townsend to debt of John B. Jones, and that the statute of the Mississippi Union Bank, upon the agree- frauds and perjuries-How. & Hutch. Miss. 710*] ment of Townsend to pay the same Digest, 370, 371--barred any such action on amount for Jemison to the Commercial Bank such promise. To this plea the plaintiff reof Columbus, Mississippi, upon a note of one pleaded, and, by his replication, denies that the John B. Jones, upon which Townsend was in- count is on a promise to pay Jones's debt. To dorser for Jones. In the declaration filed at which the defendant demurs, and for good June Term of said court, 1842, there is a special cause; for the defendant's promise to pay so count, to which is added the usual money much of Jones's debt, contained in the declaracounts. There is a demurrer to the special tion, is clearly a promise to pay the debt of count, 1st, because there is no legal cause of another person, within the statutes of frauds action set out; 2d, because no legal breach is and perjuries aforesaid. The replication denies designated; and to the money counts non as- that the count is brought on any such promise, sumpsit was pleaded. The court below made and thus the replication denies the count itself, no disposition of the demurrer, but gave leave and is as good a defense as the defendant to the parties to amend their pleadings at the could have desired. What better defense could next term. Jemison filed an amended declara- he ask than that the plaintiff should, by his tion, containing three special counts on the own pleadings, deny the cause of action set out above facts, placing them under different in the count? For this reason, the demurret phases, and also adding the usual money counts; was well taken, and should have been sustained. non assumpsit was pleaded to the money But again, in support of the demurrer, the counts, and to the special counts was pleaded plaintiff shows that he himself took up the the statute of frauds and perjuries. There was whole debt to the Commercial Bank, when the a special replication to the last plea pleaded, contract set out was that he was to take up to which the defendant demurred, and the a part thereof only, and was to leave such part court below tried the cause without making as was equal to the amount paid to the Union any disposition of the demurrer, and permitted Bank by plaintiff, to be paid by defendant to the plaintiff below to proceed to final judgment the Commercial Bank. Townsend's promise over the demurrer. The case being tried in was to pay that amount to the Commercial Mississippi, it is believed the rule governing | Bank upon Jones's debt, and not to pay the such cases in that State should prevail. The plaintiff by taking up the whole of Jones's debt regularity of these proceedings being the sub- to the Commercial Bank. Plaintiff put it out ject of inquiry on behalf of the plaintiff in of the defendants power to pay the Comerror, we maintain, lst. That the statute of mercial Bank. He relates the contract set out, frauds and perjuries pleaded is a full and con- and then seeks to recover damages of defendclusive defense to the matters alleged in the ant for a breach which was brought about by declaration. 2d. That the demurrer to the rep- his own breach of the contract first committed. lication raised the question of the sufficiency Again, it was Jones's debt that plaintiff took of the matters contained in the whole declara- up. Thus, in direct violation of the agree tion in law to charge the defendant upon the ment, Jones was the principal in the note at agreement set out; and it was error in the the Commercial Bank, and, as such, was, under court below to have permitted the plaintiff to the statute of this State, first liable directly for proceed to final judgment while the demurrer the payment of the note, either to the bank or was pending and undetermined. 3d. That the the plaintiff. Townsend being a mere accom; defendant was entitled to his judgment in the modation security for Jones, the bank could not court below upon his demurrer. Let us ex- hold Townsend responsible for the money until amine, first, the three several counts contained Jones had been pursued to insolvency; and if in the declaration. The first count is as fol- the bank cannot, how can Jemison hold Townlows, in substance: In consideration that de- send responsible, until he first fail to collect fendant was liable, by note, as security for it from Jones? The count shows that Townsone John B. Jones, to the Commercial Bank of end was a mere indorser for Jones, and Jones Columbus for about $9,806.50, and was indebt- being first directly liable to pay the Comed to the Mississippi Union Bank about $3,000 mercial Bank debt, for aught that appears to on a note of $4,000, and in consideration that the contrary he may have paid the plaintiff plaintiff would take up said last note to the the whole amount of said note. As *the [*712 Union Bank, and would also take up said plaintiff voluntarily took that amount of the Jones's in the Commercial Bank, except an Commercial Bank debt, which, by his contract, amount equal to the amount of defendant's he was bound to have left to be paid by the liability to the Union Bank, and relieve de- ' defendant, he has placed it out of the power

and in consideration that plaintiff would take up any or all of said notes in the Union Bank, agreed with plaintiff to pay to the credit of defendant's note in the Commercial Bank, on which he was security for Jones, whatever sum plaintiff should pay to the Union Bank in

of the defendant to comply; let him seek his | to the Union Bank by several notes, and in remedy on the note, and not bring his action consideration that he was liable for John B. to recover damages for a breach which he him-Jones to Commercial Bank for about $9,806.50, self was the cause of. The demurrer was good as to the replication and first count, and yet the plaintiff passed the demurrer in the court below unnoticed, and the court permitted him to proceed to judgment without joinder in the demurrer, and without making any disposition of it. If the demurrer was well taken, judg-taking up the liabilities of said defendant in ment should have been for the defendant; if not, a judgment of respondeat ouster ought to have been entered by the action of the court; the defendant below could not take issue on the replication. See How. & Hutch. Digest, 616; Revised Code of Mississippi, 120; Walker v. Walker, 6 How. Miss. 500; Bright v. Rowland, 3 Ib. 415; Davis v. Singleton, 2 Ib. 681; Brown v. Smith, 5 Ib. 387. The second count states, that, in consideration that the defendant was bound to the Commercial Bank, by note, as security for Jones, and was also indebted to the Mississippi Union Bank in the sum of three thousand dollars on a note for four thousand dollars, and in consideration that the plaintiff would take up the note in the Union Bank, defendant promised plaintiff to pay same amount on said note in said Commercial Bank, and plaintiff did_take up said note of defendant in said Union Bank, and paid the sum of three thousand and ninety dollars; yet defendant has not yet fo paid the Commercial Bank on said note of John B. Jones, on which defendant is liable as aforesaid. To this the above plea was pleaded, also that the promise declared on was to pay the debt of another, and that the statute of frauds and perjuries aforesaid was a bar. And to said plea plaintiff also repleaded, and by the replication denied that the promise declared on was a promise to pay the debt of Jones; and thus the plaintiff denies his own second count. And thereupon, the defendant demurs, as well he might. The defendant could have no better defense than the denial of the plaintiff of his own cause of action; and upon such denial, the defendant rightfully demurred to any further answer. See the same authorities. Again, has plaintiff ever sustained any injury by reason of defendant's failure to pay Jones's debt? It is a matter of no moment to plaintiff whether defendant paid or whether Jones paid, or whether Jones's debt was paid at all; he shows no affinity between himself and Jones, or Jones's debt, whereby the payment would have been an advantage, or the nonpayment a disadvantage, to plaintiff. How could the failure of defendant to pay a debt to Commercial 713*] Bank, for which he, as the security of Jones, owed said bank, affect the plaintiff, who was a stranger to said debt? The Commercial Bank is competent to take care of its own matters; and the declaration does not show that plaintiff was guardian or trustee for said bank, or that he was in any wise interested in the payment of a debt due to it. If the plaintiff has taken up defendant's note to the Union Bank, let him sue on the note, and not seek to recover damages when he could not possibly sustain any, by reason of the nonpayinent by defendant to Commercial Bank of said note to Jones. The third count states that defendant, in consideration that he was indebted

the Union Bank; and the plaintiff has taken up defendant's liabilities to the Union Bank to the amount of $8,000, and yet the defendant has not paid the Commercial Bank same amount of money, but refuses to pay same. If defendant has refused to pay the Commercial Bank, is plaintiff injured thereby? If he has not paid, he is still bound to pay; and whatever he has paid or has not paid, or is bound or is not bound, does not in any wise affect the plaintiff. The Commercial Bank may have forgiven the debt, or cancelled the notes, or Jones may have paid it; and whether the bank forgave the debt or not, or whether it be cancelled or not, in no wise affects the plaintiff. If defendant had paid the Commercial Bank, as he was already bound to do as the security of Jones, Jemison would not have been any better off; and if defendant has not paid the Commercial Bank, it is the bank's own affair whether it is ever paid, and to Jemison it matters not whether it is ever paid. The three counts are wholly void of any cause of action; if the plaintiff has paid money for defendant, let him sue for it, but not seek to recover damages for the breach of a promise to pay the Commercial Bank a debt which the defendant was already bound to pay by his promissory note, and to pay which a promise to Jemison, who was a perfect stranger as to the debt due to the Commercial Bank, creates no new obligation. As to the other counts for money had and advanced, money paid, laid out, and expended, and for money had and received, they do not sustain any action, because plaintiff hath appended thereto no bill of particulars, except a promissory note made by defendant, and others to the Union Bank. Plaintiff can give nothing in *evidence, under the [*714 common counts, except what is contained in his bill of particulars. See Statutes of Mississippi, How. & Hutch, Digest, 590. And he cannot give his note in evidence under said count, because it is a note given to the Union Bank by defendant and others, and, by the act of the Mississippi Legislature, the bank could not assign this note. See Laws of 1840, p. 16; 3 Smedes & Marsh. 661. Here, by virtue of this law, Jemison could get no such interest in the note as to authorize him to sue him in his own name; for, in fact, no title passed to him in the note; the note is not negotiable nor assignable or transferable hereby. Then the court could not permit him to practice a fraud upon the law by waiving his action on the note, and use it in evidence to sustain a right of action against the defendant, where he holds the note itself in direct and known violation of the statute; this note is still the property of the Union Bank. There being no bill of particulars filed by plaintiff, except this note, and not being lawfully possessed of it, it was not properly introduced into the bill of particulars.

and for the want of such a bill of particulars | cause where several pleas are filed, as here, and as the law requires, the common-counts in the some terminate in a demurrer and others in an declaration are wholly void of any right of ac- issue to the jury, they should all, as a general tion; and it was error to admit the note under rule, unless waived or withdrawn, be in some the money counts; the bank could not assign way disposed of by the court. The leading inthe note, because it is against the law of the quiry, then, is, if enough appears in all the State. The Supreme Court will reverse a proceedings here to render it probable that the judgment obtained upon a contract entered in-issue, in law no less than in fact, was in some to in violation of the statutes of the State. way disposed of, though this is not, eo nomine, See 2 Peters, 539. Suppose Townsend had paid mentioned in the record. Assuredly, it is usual the note, he is bound to know the law, that in this country, as a mater of practice, when the bank could not assign his note, and could there is an issue of fact and another of law in recover the amount of the debt again of him, the same action, to have the question of law if he pays it to the plaintiff. See, also, 4 heard and decided first. Green v. Dulany, 2 Peters, 410. We therefore contend that the Munf. 518; Muldrow v. McLelland, 1 Litt. 4; judgment should be reversed, and judgment Co. Litt. 72, a; Com. Dig. Pleader, Demurrer, rendered for Townsend on his demurrer. 22. The 28th rule for the circuit courts accords with this, by directing that, in such cases, "the demurrer shall, unless the court shall, otherwise, for good cause, direct, be first argued and determined," because a decision on that, if one way, that is, if in favor of the demurrer, will frequently dispose of the whole cause, and supersede the expense and necessity of a jury trial of the other issue, as well as give an opportunity to move for an amendment. 5 Bac. Abr. Pleas and Pleading, No. 1; Tidd's Prac.

Mr. Justice Woodbury delivered the opinion of the court:

The original action in this case was assumpsit. Though the declaration contained several counts, some one a special promise and some for money paid and received, it was indorsed on the original summons, that the action was "brought to recover the sum of $4,000 and interest at ten per cent. paid for defendant, from 27th of January, 1840, to Mississippi | 476; Dubery v. Paige, 2 D. & E. 394. Yet this Union Bank," etc., etc.

There was a demurrer and other pleadings as to this declaration, which it is not necessary to repeat, as leave was given to amend throughout; and on the 6th of December, 1842, a new declaration was filed, consisting of three special counts and the usual money counts, all of which must of course be for the original cause of action.

On the 9th of December, 1842, the defendant 715*] pleaded the general issue of non assumpsit to the whole declaration; and, for further plea to the three special counts, averred, that the suit was brought to charge him for the debt of John B. Jones, and for no other purpose, and that, there being no evidence of his promise in writing, the suit was barred by the statute of frauds and perjuries. To this the plaintiff replied, that the suit was not so brought, but on original promises made by the defendant. The latter filed a general demurrer to this replication.

On the 12th of December, the general issue joined as to the whole declaration appears to have been tried, and a verdict returned for $3,451.88, for which sum, at the same term, judgment was rendered and execution issued.

Nothing further took place till June 5th, 1845, when this writ of error was brought to reverse the judgment, assigning as the ground for it, that the demurrer to the replication should first have been disposed of, and that the statute of frauds pleaded in the preceding plea was a full defense to the matters alleged by the original plaintiff.

This case presents some questions of practice and of pleading which possess no little difficulty. They must be settled chiefly by the reasons which may be applicable to them; and when precedents in this court are not found for a guide in aid of those reasons, they may be strengthened by analogies established in the State courts or in England, where the systems of pleading and practice are somewhat similar. It seems proper, and is conceded, that, in a

course *being a matter of sound discre- [*716 tion in the court rather than of fixed or inflexible right, it cannot always be absolutely presumed to have been pursued. See 28th Rule, ante, and cases before cited; 2 D. & E. 394; 1 Saunders, 80, note. But as it is usual, and the defendant in this case did not file any exception, as if there had been a refusal by the court to decide first on the demurrer, the presumption does not seem so strong that there had been a refusal or neglect to do it, as that the demurrer had been waived by the defendant, or, if not waived, had been decided, and the particular minute of this on the record omitted by a mistake of the clerk. Several other circumstances exist, which, in connection with these, contribute to strengthen this last presumption, and to justify us on legal grounds in inferring that one of the above events, either a waiver or decision of the demurrer, actually took place here. First, as to those in favor of the position that the demurrer was waived. Only one cause of action existed here, though set out in several counts. This is stated not only, as before mentioned, in the summons by the original plaintiff, but by the defendant in his special plea, and in the argument of his counsel. The general issue, which was joined and tried, went to the whole declaration; and under that, at the trial, any parol evidence offered in its support could have been objected to as within the statute of frauds, which seems to have been the whole defense, as well as under the special plea setting up this statute against the special counts. This is clear from the books of practice. 1 Chit. Pl. 515; 2 Leigh's N. P. 1066; 1 Tidd's Prac. 646. Though, to be sure, it could be pleaded specially, also, and this may now be necessary under the new rules of court in England. 1 Bingh. N. C. 781; 2 Crompt. Mees. Rosc. 627. Hence, from abundant caution lest this objection might not be admissible under the general issue, the special plea here was probably at first filed. But before the trial came on, which was three days after, it is likely that the defendant had

+

the subject. A waiver of a demurrer often takes place, and is, by law, permissible. 1 Tidd's Pr. 710; 1 East, 135; 2 Bibb, 62; 1 Burrow, 321; 2 Strange, 1181. Quilibet renuntiare potest jure pro se *introducto. The [*718 want of a decision would, in this aspect of the subject, seem to be by his own consent; and consensus tollit errorem. The course of the defendant appears to have been, practically and substantially, if not formally, an abandonment of a wish for any separate decision on the demurrer: See cases of this kind. Wright et al. v. Hollingsworth, 1 Peters, 165; Bac. Abr. Error, K. 5; Vaiden v. Bell, 3 Randolph, 448; Patrick v. Conrad, 3 Marsh. 613; 2 Marsh. 227; Casky v. January, Hardin, 539. As a plea of the general issue, while a demurrer is pending undisposed of, is considered a waiver of it. Cobb v. Ingalls, Breese, 180.

So

become convinced that it was admissible, under the general issue, and therefore went to trial without having the demurrer first argued and decided, or event joined, but waived it. If, on the contrary, he concluded to try the issue to the jury first, and then, if not allowed there to make his objection as to the statute, to argue the demurrer afterwards, the inference would be equally strong, that he was allowed to urge the objection at the trial, and had a decision on it there, and therefore waived his special plea and demurrer, and a separate and unnecessary decision on them, afterwards. Such was the presumption in the case of Bond v. Hills, 3 Stewart, Alabama, 283, more fully explained hereafter. It was held likewise in Morrison v. 717*] Morrison, 3 Stewart, *444, that if a demurrer and an issue of fact were to the same matter, and the latter was tried first, it must be presumed that the other had been waived. In another view of the subject, looking to In Dufan v. Couprey's Heirs, 6 Peters, 170, the defendant's own neglect as the cause, a a writ of error was brought, for the same gen- party cannot be allowed to take advantage of eral cause as here, that one of the pleas intend- his own wrong or inattention. Thus it has ed for the court did not appear by the record been decided, that a writ of error will not lie to have been decided. But the court sustained for one's own neglect or irregularity. 1 McCord, the judgment below; the other plea, on exam-205; 1 Pike, Ark. 90; Kincaid v. Higgins, 1 ination, as will soon be shown to be the case Bibb, 396; 2 Blackf. 71; 3 McCord, 302, 477; here, being found immaterial after the finding Kyle v. Hayle, 6 Missouri, 544. It strengthens of the jury. Where one material issue is de- these conclusions, that the original defendant cided going to the whole declaration, it is seems to have long acquiesced in what he of no consequence how an immaterial issue go- now excepts to-that he does not appear to ing only to a part of it is found, if no injury have asked for a decision on the demurrer, be done by it to either party. 6 Missouri, 544. to have made any complaint at the time of And by parity of reasoning, it would be of no the demurrer not being decided, to have filed consequence whether it was decided at all or any motion about it, offered any bill of exnot, if enough else is decided to dispose prop-ceptions, or even brought any writ of error, erly of the whole case. till after the lapse of nearly three years. What fortifies these views is the fact that much as to the waiver of the demurrer. But if the defendant never procured a joinder to his the demurrer was not, in truth, waived or demurrer by the plaintiff. As he interposed withdrawn by the defendant, or cannot be now this defense in a special plea, and filed the de- so considered, from all which appears on the murrer to the replication, it would be mate-record, the presumption from all is evident, rial for him, if wanting a decision on them, to get the pleadings finished. He should have moved for a joinder, or got a rule for one (1 Chit. Pl. 628), and should likewise have moved for a decision on them, if desired, before a final judgment was rendered on the verdict. It is true that some books appear to consider it the duty of the plaintiff to join in a demurrer soon after it has been tendered by the defendant. But this, it is believed, generally depends on a positive rule of court, which may exist, to require it. 33d Rule of Practice for Courts of Equity, 1 How. 43; William's case, Skinner, 217. And without such rule, as in this case, he may need and take time to decide on making a motion to amend, before joining; and the harshest penalty proper for delay in the joinder would seem to be, that the demurrer may be considered, when requested by the party making it, though no formal joinder has taken place. 3 Levinz, 222; Skinner, 217. The omission of the defendant, then, to obtain a joinder, to which he was by law entitled (1 Chit. 647; Barnes, 163), the omission to add one himself, which is sometimes permissible (5 Taunt. 164, and 1 Pike, Ark. 180), and the omission to request a decision without any joinder,ecutors *v. Davis, 5 Litt. 129, the court [*719 as he may after much delay (Skinner, 217), all appear on the record, and look not only like a waiver of a decision on the demurrer by the defendant, but a neglect of his own duties on

that the demurrer and special plea were actually decided on by the court, and the omission to enter it on the record may be cured by the statute of jeofails. Such a decision would have been its ordinary and proper course of proceeding.

This court has held, in a state of things much like this, as will soon be more fully explained, that it was bound to presume that "justice was administered in the ordinary form." 4 How. 167. And hence, in 3 Stewart (Alabama), 447, 448, where a decree was averred in the record, but not its form, it was presumed to have been in the ordinary form. The court could not properly have decided and given judgment for the plaintiff in this case, as it did, and, as must be persumed, properly, in the first instance, if the demurrer had not been waived or settled in favor of the plaintiff. Nor was the defendant likely to have acquiesced in the judgment without putting an exception on the record, unless one of these circumstances had occurred. This question has arisen in several of the States, and been decided in conformity with these views. In the case of Cochran's Ex

very properly adopt a like principle, saying: "To this plea there was a demurrer, and although there is no order of record expressly disposing of the demurrer, vet, as the court

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 everything 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

gave judgment for the plaintiff on the whole record, it must be taken that the demurrer was sustained and the plea overruled." So in substance, it was held in McCollom v. Hogan, 1 Alabama, 515, and in Bond v. Hills, 3 Stewart, 283, where, as in this case, there was a plea, amounting to the general issue, or containing what was admissible under it, and it did not appear distinctly to have been disposed of, but the general issue was tried, it was held to be presumed that the defendant had the full benefit of the objection on the trial, and error will not lie. It is true that where one issue in a cause is found one way and another on a matter entirely distinct is not disposed of, it may not be proper always to consider it as decided. Pratt v. Payne, 5 Missouri, 51. But here the questions involved in both issues were the same; both related to the same cause of action, and both to the same defense. The cases on this subject are so much more numerous in the States than in England or in this court, that we oftener find it necessary to resort to them for analogies in support of our reasoning as to what should, under all the facts, be presumed. But in this court, at this very term, we have a strong illustration of the correctness or truth of such a presumption, in the case of Harris v. Wall; where, on similar findings by a jury on some pleas and a demurrer to others, and a judg-ed States, curing all defects or want of form in ment for the defendant without any entry made specifically that the demurrer was disposed of, it happens, in point of fact, that it was decided, and the judge on that circuit, now present, has with him his written opinion, which he delivered when deciding it. So in Stockton et al. v. Bishop, 4 Howard, 167, in a writ of error, where a verdict appeared and a judgment, but not for any particular sum, 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 substantially so set out on the record, but are plainly to be inferred to have hapened from what is set out. Cro. Eliz. 467; 4 Howard, 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, 720*]were actually disposed of. Among *them, raising a strong presumption that way, is the fact that three days elapsed after the pleas and 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,

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. statutes of jeofails usually go still further in remedying 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 Unitjudgments, is explicit against our reversing this for such a cause. Sec. 32 of Judiciary Act of 1789, 1 Stat. at Large, 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 cases. See those [*721 in 1 Bac. Abr. Amendment and Joefails; O'Driscoll v. McBurney, 2 Nott & McCord, 58. Some of the defects cured seem to be very near as strong as the present case. 11 Coke, 6, b; Act of 32 Hen. VIII. c. 30. The diffi-. culty is in deciding "what is substance and what is form," and that is governed by no fixed test, but 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, note.

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 matter 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. 1725; Cotterel v. Cummins et al. 6 Serg. & Rawle, 348; 1 Sumner, 319; 16 Conn.