1 Mo. 421 | Mo. | 1824
delivered the opinion of the Court.
This case is an action of debt. It was brought by Easton v. 'Collier, and one Joshua N. Robbins, on a recognizance of bail, entered into by them, for one P. E. Robbins, in the county of Lincoln.
There are two counts in the declaration. To the first count of the declaration, the defendant pleads, first, mil tiel record, on which there is issue joined, and found for the plaintiff. To the same count, the defendant, Collier, pleads, also, that no cana issued and returned on the original judgment against P. K. Robbins, before the commencement of this suit.' To this plea, the plaintiff replies a casa, and sets one
The first point to he considered, is, did the Court err in refusing to arrest the judgment, on the ground that the jury had not found all in issue ?
Second. Did the Court err in refusing to award a repleader, on the ground that the issue of fact, as made up, was immaterial?
Third. Did the Court err in refusing a new trial ?
Fourth. Did the Court err in deciding the demurrer against the plaintiff, on the ground of the variance?
In considering tire first point,, it will be necessary to see what the issue was, and what the jury found.
The plea is, in substance, that before the return of any casa, and while the same was in the hands of the Sheriff, the said P. IC. Robbins offered, and was going to surrender himself in discharge of his bail, and that the plaintiff,- in order to fix and charge the said bail, fraudulently requested the principal not to surrender himself thereon, and assured the principal, that his only object in taking out execution was, to continue the same, so as to prevent the necessity of reviving the judgment by set. fa.; by means of which said request and representations, the said Robbins was then and there prevented from surrendering himself as aforesaid.
The verdict of the jury responds to the plea, word for word, as far as it goes; but it does not find all in issue. A part of this issue is, that Robbins, by means of this fraudulent request, was prevented from surrendering himself. The verdict says nothing about this.
The lav/ is, that all in issue must be found, or in other words, the whole of the substance of the issue miist be found: 7 Bac. 22. ' If a verdict only find part of what is in issue, it is bad : 7 Bac. 19. This is authority enough on the subject. Here a material part of the issue has not been found, and for that the judgment must be reversed. But it is said, this Court might amend it, if the fact was, that more had been found, and had been omitted by the Clerk, in entering the verdict. The opinion of the Court is different. Admit amendments may be made on writs of error: what shall we amend by here — by the memory of any one who could swear to-the fact? This is too dangerous — by the Judges notes who tried the cause ? This cannot be admit
By these cases it will be seen that the act was done to the person who had to do a material part of the thing to be performed, yet the bonds were forfeited.
The defendant in this case oughtto have shown, at least, that he did all he could to surrender Robbins, and that he vyas obstructed and prevented from doing so by Easton; so that the plea is bad in form and in substance. The matter of this defence is as immaterial as it would have been to have said, the defendant could not surrender, because he could not lipd Robbins.
The next inquiry is, ought the repjeader to have been awarded? Erom the best consideration this matter is capable of receiving, it seems a repleader ought not to have been awarded, because the rule is, if it appears, hy the defendant’s own showing, that in no way this plea can he put, it would amount to a bar, and would have no merits, a' repleader cannot he awarded: 1 Chit, on Pleadings, 634, In this, the defect is in the substance, as well as in form; to be sure, the form may be amended, hut the substance set forth cannot he moulded into form, so as to make a good defence ; and if this matter stood alone, the judgment must he nofi obstante veri dicto. But as tie declaration is replied to by other pleas, which have not been disposed of, the cause must he sent baplt, to have those matters disposed of.
Third. As to the cause assigned for error, in refusing a new trial, it is not necessarv to make any disposition of it.
The fourth point proposed to be considered, is, did the Court err in deciding the demurrer against the plaintiff, on the subject of variance. On this point, the Court is divided in opinion 5 Judge Pettibone being of opinion, the decision is right, and Judge M’Gibk being of a different opinion; the judgment on that point is, therefore, affirmed. As to the motions to discharge the bail, we do not consider them any part of the record; and.as to the goodness of the pleas to tire second count, yet to be disposed of, we forbear any opinion.
The judgment on the first count is affirmed, with costs 5 and the judgment on the second count is reversed, with costs. The cause is sent hack, to he further proceeded pn in the Court below, by disposing of the pleas and issues, not yet disposed of.
The Court below were correct in not awarding a repleader. If the plea is in substance no bar to the suit, then there is no use in ordering it to be repleaded in another shape; for whatever shape it may assume, it still will be no bar. A repleader is not