delivered the opinion of the Court.
This case comes up on a writ-of error to’the Circuit Court of Washington county,in the district of Columbia,- It appears fróm the' record, that,.Philip Roaph, the plaintiff's intestate,^having contracted by agreement in writing on the ,3d day of April, 1829, with' one. Samuel Davidson, for the workmanship to be performed in the construction of á lock described as the outlet lock at a place, called Lewistownydid, on’the 27th of April, in the same year, enter into a covenant with Hulings, the defendant in error, in which it was agreed that the defendant should supply-all the ■ timber, plank, arid boards, required in building this lock, at prices stipulated in the' said covenant, to be paid by the plaintiff’s intеs-tate. On the 13th of March,' Í837, an action’of covenant wás instituted by Hulings in the. Circuit Court of Washington county against Philip Roach, to recoyer the value of the timber,'plaftk, &c., alleged to haye been furnished by the former, in performance of the contract. The covenant is by profprt made a part of the record.. ’ An аccount, exhibit (B), is filed, showing; the amount. arid,value of the materials for which compensation is claimed; also the deposition of. a witness, Samuel Davidson, to prove the justice of this account. Philip Roach having died after appearance to the suit, process was directed against his representative; and the defendant having subsequently appeared as administrator of the. deceased, filed 1st, the pleas of covenants performed, and payment by his intestate; and next the plea of set-off of an *321 alleged debt of three thousand dollars due to' the intestate in his lifetime, and greater in amount than the damages claimed by the plaintiff. ' On these three pleas, issues were joined; and the jury rendered a general verdict in .damages for the plaintiff. ■, The questions of law decided by the Court below, and now presented fór rey tew here,, arise upon two hills of exception sealed by the Judges of the Circuit Court, and made parts of. the .record. But before-going hito, an examination of these questions; it is proper, to advert to a point which was, ¿either suggested nor decided in the Circuit Court, but which has been urged'for the first time'by the counsel for the plaintiff in error before this Court. The point thus raised and pressed by counsel is the following:. that the jury, in rendering their verdict, failеd to respond separately to the distinct issues they were swprn to try; aftd that this failure by the jury constitutes an error for which the judgment of the Circuit Court should be arrested. Objections .of this character, that,'are neither taken at the usual stage of the. proceedings, nor promineritly presented upon the face of the, rеcord, but which may be sprung upon a- party after ah apparent waiver of them by his adversary, and still more after a trial Upon the merits, can have no eláim to the favour of the Court; but should be entertained in obedience only to the -strictest requirements of the. law. Let us see ho ■ far in the present instance the Court is controlled .by any such, absolute and inflexible authority: The three issues were joined upon affirmative allegations by'the defendant: 1st, That his intestate had performed,his covenant': 2d, That he had paid whatever was due the plaintiff: and 3d, That the defendant possessed iii right, of his intestate a cláim against the plaintiff, greater in amount than the plaintiff’s demand against him. Upon these affirmative averments, the jury find.a verdict for the plaintiff, Admitting that-this .Verdict is not technically responsive to the several .pleas, it virtually answers and negatives them all; tfor if all br either of the pleas had been true, the verdict was untrue. Should the judgment then be arrested, this would be done neither frоm a necessity to guard the merits of the controversy, no from the principles of sound inductive reasoning; but solely in obedience to an artificial and technical rule, which, however it may be founded in wisdom-ápd'¡be promotive of good in general, yet, like all other rules, is capable of producing evil when *322 made to operate beyond the objects of its creation. It Was to prevent the mischiefs ensuing from a misapplied rigour that statutes of jeofails have been enacteu, and their salutary influence is invoked whenever the intrinsimmerits of parties litigant would, without'that influence, be sacrificed to mere modes and forms of prаctice. By the thirty-second section of the act to establish the judicial Courts of the United States, it Is provided, “ That no .summons, writ, return, process, judgment, or other proceedings in civil causes in any of the Courts of the United States, shall be abated, arrested, quashed or reversed, for any defect or want of form, but the. said Courts respectively shall proceed and give .judgment according as the right of the cause and matter in law shall appear to them, without regarding any imperfections,.defects, or .want of form in such writ, declaration, or other pleading, return, process, judgment,-.or course of proceeding whatsoever, except those, only in cases of demurrer, which the party demurring shall specially set down and express together with his demurrer as the causé thereof,” It is true that á verdict, eo no-mine, is not comprised within this provision of the statute, but judgments are: and the language of the provision, “writ, declaration,., judgment, or other proceedings in civil cаuses,” and further, “ such writ, declaration, pleading, process, judgment, or other proceeding whatsoever,” is sufficiently comprehensive to embrace every.conceivable step to be taken in a cause, from the emanation of the writ down to the judgment. The Court have-shown that the proceedings in this cause were according to the right of the case, that they brought into view the real merits of the parties litigant before the jury; they-therefore consider both the verdict and judgment are within the terms and intent of the statute,, and ought to be protected thereby.
The first bill of exceptions states, that the plaintiff having introduced his proofs, the defendant then gave evidence that in' the spring of 1831 the plaintiff stated to the witness that he had just settled with Philip Roach, (the defendant’s intestate,) all his private accounts, as well as an account of one Davidson against said Roach, and had been paid the same except, five hundred dollars, for which he had Roach’s due-bill or note, payable on demand, but the witness was uncertain whether the plaintiff said it was a due-bill or note: arid further stated that he and Roach were going to *323 Washington where Roach had provided to pay said due-bill or note. And the defendant further proved, that about the time of this statement by plaintiff, Roach drew out of a partnership a considerable sum of money lot his.own use; whereupon the defendant. moved the Court to instruct the jury, “ That if they believed the account in suit was settled by a due-bill or note given by defendant’s intestate to the plaintiff, then the presumption is that the said due-bill or note had been paid;’’ and after-wards further, prayеd the Court to instruct the jury, “-That if the jury believe from the evidence, that the defendant’s intestate, in the spring of 1831, closed the account' in suit, by giving to the plaintiff his due-bill or note payable-on demand, and that immediately afterwards the plaintiff with Philip Roach came to Washington for the purpose of receiving the money for the said due-bill or note; that about the time Of said visit to Washington, a considerable sum of money was withdrawn by said Roach, from a partnership in which áaid Roach was engaged with Patrick Donelly, in consequence of which Donelly abandoned the partnership ; then the jury may presume from the above facts, arid from the non-production of the due-bill or note by the plaintiff, no account being given by the plaintiff of said bill or note, that the same was paid and delivered to the said Philip Roach, and by him destroyed;” but the Court refused, &c.
In trials at law, whilst it is invariably true that the decision of questions upon the weight of the'evidence belongs exclusively to the jury, it is equally true, that wherеver instructions upon evidence are asked from the Court to the jury, it is the right and duty of the former to judge of the relevancy and, by necessary implication, to some extent, upon the certainty or definiteness of the evidence proposed. Irrelevant, impertinent,'or. immaterial statements, a Court cannot be called upon to admit as the groundwork of instructions ; it is bound to take care that the- evidence on which it shall be called to act, is legal; and that it conduces to the issue on behalf either of the plaintiff or of tile defendant. To apply these principles to the cáseunder review.. — The purpose of the dеfendant below was tcf .show, that the demand of the •plaintiff, if originally well founded, had been paid by the execution of a note by the testator of the defendant, which note had been subsequently satisfied, surrendered to the maker, and by him destroyed. *324 And wfiat was the evidence introduced to establish these 'conclusions ? The - statement by a witness of a conversation between, himself arid the plaintiff in 1831, wherein it was stated, amongst other things, by the former, that he had settled all.his private accounts,'as well as on account of one Davidson, against, said Roach, and had been paid the sarrie, except five hundred-dollars, for. which he; had Roach’s due-bill or noté payable - on demand, .but the witness was uncertain whether the'plaintiff said'it was a due-bill or note; and further said that he and ’Roach were going ttí Washington^ where Roach had promised ter pay said .due-bill or note :• and further, that about this time Roach drew out of a. partnership a considerable, sum of money for his own uses.
: Now, the first thirig which strikes the attention with respect to the .testimony of the witness is, that' he does not prove with certainty, if at allj\the existence of any instrument whatsoever: he saw none, and cannot give a.clear and certain description of it as reported to. him by the plaintiff:’ he does n’ot know whether it Was a.due-bill or a note. In the next place, the witness does not- disclose whether this note óp due-bill, or whatever it may have been, Was given, for the benefit of Davidson, or for that of. the plaintiff; for we are told that the plaintiff professed to havé settled with Roach his own private accounts, as well as on account of one Davidsori. Now, although there was a contract between. Roach and one Davidson, for the building of the outlet lock, yet there is nothing in the plaintiff’s- contract with Roach, nor any proof in the record, which connects the plaintiff, or his undertaking, or the obligations of Roach to him, With any transaction between Davidson and Roach. Then,-when the plaintiff is represented as speaking of a settlement with Roach on account of Davidson, distinguishing it. at the same time from a settlement of his own private account, and as speaking of a note or due-bill taken upon these settlements, it would be as regular to presuriae that such note or due-bill, (if it wеre practicable to_ conjecture which it wás,) belonged as much to the one settlement as the other. Upon these loose statements the Court Were asked to instruct the jury, that, if they-believed the account in suit .was settled by a due-bill or note given by the defendant’s intestate to the plaintiff, then the presumption is, that the said due-bill or note has been paid. And further, that if they believed from the *325 samé evidence, xnat the defendant’s intestate, in 1831, closed the account in suit, hy giving to the plaintiff his due-bill , or hóte, payable on demand, and that' immediately afterwards; .the plaintiff with Philip Roach came to Washington for the purpose of receiving from Philip Roach the money for- said due-bill or note; and that money was drawn by said Roach from a partnership in which he was engaged.; then' the jury may presume from the above facts, and the non-production of the dué-bill or note by the plaintiff, (no account being given by the plaintiff of the said due-bill or note,) that the same was paid, and dеlivered to the said Philip Roach, and by him destroyed, &c. The propositions which the Court were here required to affirm, so far. from following as regular or allowable inferences from the evidence, appear to be in nowise dependent upon it. No witness had proved so muchasthe.existence of any particular writing Whatsoever; much, less’that of an obligation payable to the plaintiff, and in his own interest and behalf. How, then, could- the jury, with any • propriety,, be directed to presume, not only the existence of such an obligation, but also its discharge; and, in addition to these facts, its actual surrender to, and destruction by the defendant’s intestate ; thereby relieving him from all the presumptions naturally arising, against a party from the non-prodüction of a document, .whenever the custody thereof is brought home to him, either by direct or circumstantial proofs. Almost any other propositions which can be imagined could with as much regularity have been required from the Court as instructions to the jury, as those which the Court was requested to affirm.
The cases of Swift
v.
Stevens from
In the second bill of exceptions the Court is asked to -instruct the jury that, should they be of-opinion, from the said .evidence, that Philip Roach made and delivered his negotiable note payable on demand- to the plaintiff for the balance due him on a final settlement of all accounts, that the plaintiff cannot "recover, unless he has produced the said note, or proved that.thé sanie was lost, cfr that the samе wqs'cancelled, &c. This hill of exceptions may he. disposed of- in veryffew words. The instruction it prays for purports to be founded upon the evidence contained in the former hill; and it asks,.that if .jhe.jury shall' believe, upon the evidence, that Philip'Roach did execute and ffeliver. to the plaintiff his negotiable note pаyable orf,demand, then, &c..' -Now,’, in the evidence referred to, there is not qne word contained/; relative tó a negotiable note made and delivered by Philip Roach'to the plaintiff, or to any other person. .It would have been,improper for. the jury to Have embraced in their 'contemplation, or belief аny thing concerning -a negotiable- note; and improper for the Court to have given them any instruction-concerning' a-dopui, ment which was not in the cause, and about which not a tittle of evidence was adduced from any quarter. Jn refusing the instrue--, tions asked for,, as set .forth in this second bill, the Circuit Court have also' decided correctly; and this Court, approving its .decision upon both the points adjudged by it, doth affirm the judgment of the Circuit' Court.