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this court, that contracts of this description, mentioned does not invalidate a sale made by made at the time when these notes bear date, him. On the contrary, the sixth section of the were valid, and not prohibited by the constitu- act, by its terms, recognizes the validity of such tion of Mississippi." sales.

This being the law of the case, it is clear that the plaintiff below might have treated these pleas as nullities, and, as far as they were concerned, have signed judgment for the want of a plea.

But he inadvertently took issue upon them, and the jury decided the facts against him; and in that state of the case it is equally clear that he might have moved the court for judgment non obstante veredicto.

This he omitted to do, and now the inquiry is whether that omission precludes him from availing himself of the insufficiency of the judgment in this court.

That it does not, the plaintiff in error thinks is clear upon principle as well as upon authority. 698*] *That the issue was not material, see 2 Saunders, 319 (No. 6).

That the defect is error, for which the judgment will be reversed, it is respectfully submitted will be conclusively shown by the following cases: 6 Cranch, 221, 223, 225; Kirby, 139; 2 Root, 4, 204; 2 T. R. 759; 2 Archibold's Practice, 758; 1 Mason, 62; 4 Howard, 131.

In the case last cited, the question was elaborately examined, and the principle and practice settled, under circumstances much less strong than those which are disclosed in the record in this case.

But it is supposed by the counsel for the defendant in error, that the judgment rendered in the court below must be sustained because it is said to be a general judgment, and that the third of the pleas of the defendant below set up a sufficient defense to the action.

To this it is answered, in the first place, that there was no judgment rendered in the court below upon that plea, and this is manifest from the whole record.

The plea was in bar, and, if good, furnished a full defense to the plaintiff's action. Yet a jury was called to decide the issues of fact, wholly unnecessary to be passed upon if the plea in question had been adjudged good.

Nor does the judgment profess to be rendered on the demurrer-it is on the verdict.

As to the form of a judgment on demurrer, see 2 Saunders, 300 (No. 3); 2 Archibold's Practice, 11; Archibold's Arms, 306; Tidd's Practical Forms, 200.

Even, however, if it were otherwise, and judgment had been rendered on the demurrer, it could not have been supported.

This plea was framed on the Act of Mississippi of the 18th of June, 1822, 4th and 5th sections, Howard and Hutchinson's Digest, 156.

The first mentioned of these sections (the fourth) prescribes the mode and manner in which slaves may be imported as merchandise into Mississippi; the fifth, what shall be done when such slaves are sold.

*The plea does not allege any combi- [*699 nation or collusion between the plaintiff and defendant in regard to the introduction of the slaves sold into Mississippi. Can it, then, be doubted, that, under the provisions recited, the defendant acquired a title to the slaves in question under his purchase? And if so, is it not equally clear, that, though liable to the penalty denounced by the sixth section of the` act in question, the plaintiff is competent to enforce his contract against the defendant? It can hardly be that the defendant has acquired a title to the property purchased, and yet is not answerable for its price.

Questions of this character have been frequently considered and decided. See 11 Wheat. 258; 4 Burr. 2069; 6 T. R. 410; 3 T. R. 418; 1 Bos. & Pull. 295; 7 Taunt. 246; 4 N. H. 290; 8 Wheat. 357; 12 Peters, 70; Walker, 293; 1 Litt. 16, 19.

In any view, therefore, which may be taken of this act of Mississippi (assuming it to be in force though some intimation is given in the notes of the defendant's counsel, that it has been repealed) it is submitted that it cannot avail to defeat the recovery by the plaintiff of his demand. But it is insisted that the question does not arise in this case, the record showing that the demurrer, at the time of the trial of the issues before the jury, was undisposed of, and that the judgment was rendered on the verdict alone.

Mr. C. R. Clifton, for defendant in error, in reply:

1. The act of 1789, which authorizes the taking of the deposition of a witness de bene esse, nowhere requires that the notice should show that the case was within the provisions of the act. The decisions cited by the counsel for the plaintiff only established what has never been controverted, that the party who offers a deposition taken de bene esse must show that the case provided for by the act existed, and that there had been a full compliance with its requisitions.

In this case the counsel of the opposite party attended the examination.

When the deposition was offered, in open court, the party offering it proved, that, at the time it was taken, the witness was on his way to the republic of Texas—that is, he was "about to go out of the United States”—and that he then, at the time of offering it, resided in that republic. These facts having been proved by evidence aliunde, the certificate of the commissioner showed every other fact required by the act of Congress to render the deposition competent, and we insist there was a compliance with all its provisions.

The only object of the notice was to secure the attendance *of the counsel at the [*700 examination. He attended, and pleads in The sixth section of the same act imposes a abatement to the notice, that it was insufficient penalty of $100 for every slave sold without a-his presence refuting his plea. compliance with the provisions of the fourth and fifth sections.

Now, it is apprehended, that, upon the true construction of this act, the non-compliance by the seller with the provisions of the sections

2. The deposition of Sims ought not to have been excluded. The issue was as to what was the consideration of the bond sued on; it being averred on the one side that it was for slaves introduced into the State of Mississippi and

sold in the year 1836, and denied on the other. "Any person, who shall sell any slave or The deposition contains several circumstances slaves brought into this State as merchandise, conducing to show the truth of this averment; shall cause to be registered with the register of and among these is the one objected to-that is, the Orphans' Court of the county where such that the plaintiff had carried slaves to Missis- slave or slaves are, or are first sold, every cersippi for sale, and was, in fact, engaged in the tificate as aforesaid, the seller previously swearavocation of a "negro trader." How far the ing that he believes the contents of such certifidefendant would have been permitted to go in cate or certificates to be just and true; which making this proof, in opposition to the will of oath said register is hereby authorized and rethe plaintiff, it is not now needful to inquire, quired to administer; for which service he shall since no such opposition was made. This fact receive the sum of one dollar for each certifiwas proved in a deposition, which the plain-cate so registered." See How. & Hutch. Digest, tiff agreed should be read as evidence to the 156, and Hutchinson's Mississippi Code, 513. jury; and he cannot now ask the appellate | The sixth section of the act imposes a penalty court to reverse the judgment, because the of $100 for every slave sold without a complicourt below held him to his own agreement. ance with the said fourth and fifth sections, recoverable in any court of competent jurisdiction.

The counsel then proceeded to the discussion of the point involving the construction of the constitution of Mississippi, and arising on the issues found by the jury for the defendant; but was arrested for the moment by the Chief Justice, who, after conference with the other members of the court, said that this question had been repeatedly settled by this court, and the court could not consent to consider it an open question, and hear it again argued. The counsel acquiesced with manifest reluctance, and, being asked by a member of the court if there was any other point in the case, said:

There is a special plea founded upon the fourth and fifth sections of the Act of the 18th of June, 1822, which, if not repealed by the provision of the constitution of Mississippi as to the introduction of slaves, presents a valid defense to the action. It is demurred to.

In Mississippi, these sections have been considered as repealed, upon the ground that the constitution, which is the supreme law, prohibits the introduction of slaves absolutely, and therefore repeals all laws permitting them to be imported upon condition.

This court, adhering to its former decisions, cannot regard these sections as repealed, because, if the constitution did not prohibit their introduction from the 1st day of May, 1833, the law which specified the conditions upon which they might be imported and sold remained in full force.

The facts stated in this plea are confessed on the record. The judgment of the court for the defendant is general.

This court will inspect the entire record, and give judgment for that party who may appear to be entitled to it; and if the plea interpose a good defense to the action, the judgment of the court below, according to familiar principles, will not be disturbed.

The counsel on the other side assumes, that, even if this were so, the defense disclosed by that plea is not a valid one; and he refers to a variety of cases for the purpose of sustaining that position.

The first of these is that of Armstrong v. Toler, from 11 Wheaton, which, as it is understood by me, cannot be tortured into any authority for the plaintiff. On the contrary, it decides, that, where a contract grows out of an illegal act, a court of justice will not lend its aid to enforce it. The selling of a *slave, [*702 without a previous compliance with the requisitions of the law, which could alone make such sale legal, was an illegal act; and this, therefore, is an authority for the defendant.

The case from 4 Burrow was an action on a bond given by the defendant to the plaintiff, to repay to the plaintiff the one half of a sum of money which the plaintiff had previously paid, for himself and the defendant, to a third party, in relation to a transaction forbidden by act of Parliament; and it was said by the court to be a fair and honest transaction between these two, and not in violation of the act.

That from 6 T. R. 410, Booth v. Hodgson,

The language of these sections is: "It shall not be lawful for any person or persons to im701*] port into this State, from any of the United States, or the territories thereof, as merchandise, any slave or slaves, either negro or mulatto, or of any other description what-is an authority for the defendant. ever, above the age of fifteen years, without having previously obtained a certificate, signed by two respectable freeholders in the county of the State or territory from whence such slave or slaves is or are brought; which certificate shall contain a particular description of the stature and complexion of such slave or slaves, together with the name, age, and sex of the same; and, furthermore, that the slave or slaves therein mentioned and described have not been guilty of murder, burglary, arson, or other felony, within their knowledge or be lief, in such State or territory; which certificate shall be signed or acknowledged before the clerk of the county of the State or territory where the same is given, and certified by said clerk, specifying therein that the persons whose signatures are affixed thereto are respectable freeholders of the county and neighborhood in which they reside.

In delivering the opinion in 3 T. R. 418, Lord Kenyon expressly declares that none of the provisions of the act were infringed.

1 Bos. & Pull. decides, that, if the contract be stained by anything illegal, the plaintiff shall not be heard in a court of law. Simpsonv. Bloss, 7 Taunt. 246, holds that no action can be founded on an illegal contract, and furnishes a test for determining what is an illegal contract, which is decisive against this.

The case from 4 N. Hamp. 290, is an express authority for the defendant. It decides, that, when a statute inflicts a penalty for the doing of a particular act, that act is, by implication, prohibited and illegal. "Where an illegal contract is made between parties who are in pari delicto, the contract is void, and neither party can maintain any action which requires for its support the aid of such illegal contract."

The other cases seem to me to have no very

direct application to the question, and certainly furnish no support to the idea that a party can successfully assert a right in a court of justice, to which he has entitled himself by a violation of law.

It would be useless to multiply authorities on this point. The courts of England and this country, with a rare uniformity, have held that every contract made in violation of the laws of the land, or without complying with its provisions, or which is made in disregard or contravention of the statute or common law, is void. and cannot be enforced in law or in equity. 1 Leigh's N. P. 6-13; 2 Peters, 539; 2 Carr. & Payne, 472; 4 T. R. 466; 3 Ib. 454; Cowper, 191; 2 Doug. 698; 1 Maule & Selw. 593; 5 Barn. & Ad. 887; 4 Peters, 410; 5 Johns. 320; 1 Randolph, 76; 3 Ib. 214; 1 Barn. & Cress. 192; 5 Ib. 887.

Indeed, I had supposed, if there was a universal and uncontroverted proposition in the common law, as it is known and understood in England and in this country, it was, that no act done in violation of the laws of the land, or in disregard or contravention of its principles, can be the foundation of a claim which can be enforced at law or in equity. And this has been the rule from Lord Holt to the present time, as can be shown by an unbroken series of decisions. In truth, this principle is much older than the common law, and was incorpo-ion of the court: rated into that system from the civil law, whence it comes to us, clothed with the sanction of many centuries.

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*Mr. Justice Grier delivered the opin- [*704

On the trial of the issues of fact in this case before the Circuit Court, the defendant offered to read the deposition of William S. Rayner, which had been taken de bene esse, under the thirtieth section of the Judiciary Act. It was objected to by the plaintiff's counsel, as not coming within the conditions prescribed by that act. The court admitted the deposition, and sealed a bill of exceptions, which is the

Where the law, as in this case, declares it shall not be lawful to do a particular thing, unless under certain conditions and limitations, no action can be maintained upon a contract 703*] growing *out of the doing of that thing, unless those conditions and limitations have been complied with. To declare an act unlaw-foundation of the first assignment of error. ful, and at the same time to give a remedy to the person guilty of doing it, founded on his illegal act, would be to make the law as a house divided against itself. The law was never guilty of the absurdity of giving a legal action for an illegal act.

A notice was served on the plaintiff's counsel, signed by the commissioner or magistrate, and stating the time and place at which it was intended to be taken, and that, "I shall take the deposition of William S. Rayner, (about to depart the State), to be read on the part of the defendant, de bene esse," etc.

When the deposition was offered, the defendant proved to the court, that "when said deposition was taken, said Rayner was his way to the republic of Texas, to reside there, and that he was a citizen of, and re

on

In Bartlett v. Vinor, Carth. 251, Chief Justice Holt says: "Any contract made for or about any matter or thing which is prohibited and made unlawful by any statute is a void contract, though the statute itself does not mention that it shall be so, but only inflict a penalty on the defaulter, because a penalty im-sided in, said republic." plies a prohibition, though there are no prohib- It has been decided by this court, in the case itory words in the statute." The same is held of Bell v. Morrison, 1 Peters, 351, that "the in Bensley v. Bignold, 5 Barn. & Ald. 335, Dru-authority to take depositions in this manner, ry v. Defontaine, 1 Taunt. 136, 14 Mass. 322; Holt's N. P. Cas. 435. This rule is now applied as well to cases mala prohibita as mala in se. 2 Bos. & Pull. 374, 375; 5 Barn. & Ald. 341; 2 Wilson, 351; 17 Mass. 281.

being in derogation of the rules of common law, has always been construed strictly, and therefore it is necessary to establish that all the requisitions of the law have been complied with before such testimony is admissible."

"The policy of a penal statute may be en- The conditions under which a party is perlarged, not for the purpose of inflicting the pen-mitted, and a magistrate authorized, to take alty, but to avoid the contract." Dwarris on depositions de bene esse, under this act, are, Statutes, 752; Mitchell v. Smith, 1 Binney, 1st, that the witness lives at a greater distance 110–118; 4 Yeates, 34-54; 4 Serg. & Rawle, 151. from the place of trial than one hundred miles: No recovery can be had for printing a news-2d, or is bound on a voyage to sea; 3d, or is paper, whose publisher does not first make the about to go out of the United States; 4th, or affidavit directed by the act, though the act out of such district to a greater distance from does not, in terms, avoid the contract. Mar- the place of trial than one hundred miles, bechant v. Evans, 8 Taunt. 142; Roby v. West, 4 fore the time of trial; 5th, or is ancient or N. H. 285. very infirm.

The 17 Geo. III. ch. 42, sec. 1, declares, all The magistrate is required also to deliver to bricks made for sale shall be 21⁄2 inches thick the court, together with the depositions so takand 4 wide, and the second section imposes en, a certificate of the reasons of their being twenty shillings for every thousand bricks so taken, and of the notice, if any, given to the made of less dimensions, as a penalty. Held, opposite party. In order to entitle the party to that bricks of less dimensions could not be re-read such depositions when taken and certified covered for, though there was nothing in the act declaring the sale void. Law v. Hodgson, 2 Camp. 147.

And in the case of Sprergean v. McElwain, 6 Ohio, 442, it is decided, that where the statute forbids the keeping of a ninepin alley, under a penalty, a carpenter who builds one, knowing the object, cannot recover the price of building.

in due form of law, he must show, that, at the time of the trial, 1st, either the witness is dead; 2d, or gone out of the United States; 3d, or to a greater distance than one hundred miles from the place where the court is sitting; 4th, or that, by reason of age, sickness, or bodily infirmity, he is unable to travel and appear at court.

Now, assuming that the defendant has

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brought himself within the conditions which would enable him to read a deposition regularly taken and certified according to the requisitions of this act, the question is, whether this depositions was so taken and certified. 705*1 *The authority or jurisdiction conferred on the magistrate by this act is special, and confined within certain limits or conditions, and the facts calling for the exercise of it should appear upon the face of the instrument, and not be left to parol proof. The act of Congress requires them to be certified by the magistrate. It would be reasonable, also, where notice is required to be given to the opposite party, that such notice should show on its face that the contingency has happened which confers jurisdiction on the magistrate, and gives a right to the party to have the deposition taken, so that the party on whom the notice is served may be able to judge whether it is necessary or proper that he should attend. The notice in this case states only that the witness is "about to depart the State," not that he is bound on a voyage to sea, or about to go out of the United States, or a hundred miles from the place of trial.

This notice is appended or annexed to the deposition, with a return of service by the marshal; but the service is not certified by the magistrate, nor does he certify, as required by the act, "the reasons" for taking the deposition. The presence of the plaintiff's attorney, who declined to take any part in the proceedings, cannot affect the case, or amount to a waiver of any objection to the want of authority appar

ent on the face of this certificate.

We are of opinion, therefore, that the court erred in admitting this deposition to be read to the jury.

The judgment of the Circuit Court is reversed. Order.

This cause came on to be heard on the tran

script of the record from the Circuit Court of

the United States for the Southern District of

Mississippi, and was argued by counsel; on consideration whereof, it is now here ordered and the said Circuit Court in this cause be, and the adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the this cause be, and the same is hereby remanded same is hereby reversed, with costs; and that to the said Circuit Court, with directions to award a venire facias de novo.

THOMAS TOWNSEND, Plaintiff in Error,

V.

ROBERT JEMISON.

Judgment on verdict-several counts-not er roneous because of demurrer to special plea to part of counts-Mississippi law.

Although, as a general rule, all issues, whether of law or fact, ought to be disposed of in some way by the court below, yet, under the particular circumstances of this case, which presented the appearance upon the record of a demurrer which had not been disposed of, this court will presume that the demurrer had been withdrawn or overruled.

The thirty-second section of the Judiciary Act (1 Stat. at Large, 91) forbids a reversal of the judgment on account of the omission of the clerk to record such waiver or overruling.

The statutes of jeofails examined.

Where there are special and general counts in a declaration, and a demurrer is filed which affects upon the general issue plea to the general counts, a verdict and judgment so obtained will not be set aside because the demurrer was undisposed of. A statute of Mississippi, where the case was tried, allows one good count to sustain a judgment.

only the special counts, and the party goes to trial

Where the plea was bad, and the demurrer was to a replication to this bad plea, the first fault in pleading was committed by the defendant, and judgment against him was properly given.

THIS

The third and fourth exceptions have been abandoned on the argument, and the second does not appear to be well taken. When parties, with a full knowledge of the contents of a deposition, agree that it shall be read to the HIS case was brought up by writ of error jury on the trial of the cause, they have no from the District Court of the United right to complain of the court for not exclud-States for the Northern District of Mississippi. ing from the consideration of the jury the very matter which they themselves have agreed should be read to them.

The record in this case does not show that any judgment was given by the court below on the demurrer. If a defendant plead several pleas in bar, either of which is a defense to the whole action, and one be found in his favor, he is entitled to judgment. For this reason the parties may have considered it unnecessary to pray the judgment of the court on the plea demurred to, as the issues on the other pleas had been found in favor of the defendant, and judgment rendered thereon for him. And the plaintiff here, who was also plaintiff below, cannot assign error on an issue in which there was no judgment of the court below. The validity of the defense set up in that plea is consequently not before this court, and cannot be noticed. But as the trial of these issues below took place before the decision in this court of the cases of Harris v. Runnels, 5 How. 135, 706*] *and Sims v. Hundley, 6 How. 1, and as these cases show that the issues of fact are immaterial, though found for the defendant, the defense will probably turn wholly on the decision of the point raised by the demurrer.

It was a suit brought by Jemison against Townsend, to recover a sum of money which Jemison had paid for him to the Mississippi Union Bank, at Macon. The consideration appears to have been, that Townsend should take up a note at the Commercial Bank of Columbus, for which he, Townsend, was bound for one John B. Jones; but in what manner Townsend's taking up the latter note would benefit Jemison did not appear from any part of the record.

*On the 21st of May, 1842, the suit [*707 was commenced by issuing a summons, which was indorsed as follows:

"This action of assumpsit is brought to recover the sum of $4,000, with interest at 10 per cent. (paid for defendant), from 27th January, 1840, to Mississippi Union Bank; defendant agreed to pay for plaintiff same amount in the Commercial Bank of Columbus, Mississippi, in consideration that plaintiff would pay same amount for him to the Mississippi Union Bank at Macon; this action is brought to recover said sum of money, defendant having failed to comply with his promise.

"Harris & Harrison,
"Plaintiff's Attorneys."

100

"Cocke, Smith & Gholson, "for Defendant." Plaintiff's replication to defendant's above stated pleas, filed at December Term, 1842, in the words and figures following, to wit: "The United States of America, Dis- [*709 trict Court for Northern District of Mississippi, December Term, 1842. "Robert Jemison

The declaration originally filed was amended, "And for further plea in this behalf, the and on the 6th of December, 1842, the amended | said defendant, as to the first, second, and third declaration was filed, which contained three counts of the said declaration, says, that the special counts and the general money counts. said plaintiff ought not to have or maintain The first of the three special counts was as fol- his action, because he says that, by an act to lows, the other two being similar in substance. | prevent frauds and perjuries, it is enacted, that "Robert Jemison, who is a citizen of the no action shall be brought whereby to charge State of Alabama, by leave of the court for the defendant upon any special promise to anthat purpose first had and obtained, by at-swer for the debt, default, or miscarriage of torney, complains of Thomas Townsend, who any other person, unless such promise or agreeis a citizen of the Northern District of ment, or some note or memorandum thereof, the State of Mississippi, and who was sum- shall be in writing, and signed by the party to moned to answer the said plaintiff of a plea of be charged therewith, or some other person by trespass on the case in assumpsit. For that him thereunto lawfully authorized. And the whereas, heretofore, to wit, on the 20th day of said defendant avers, that the said plaintiff March, A. D. 1840, at, to wit, in said district, in | hath brought his action to charge the defendconsideration that the said defendant was then ant for the debt of John B. Jones, and for no and there bound, and liable by note in writing, other purpose whatever; and that there is no to the Commercial Bank of Columbus, Missis- agreement in writing touching the promise of sippi, for one John B. Jones, as his security the said defendant, as alleged in said counts for about the sum of nine thousand eight hun- of said declaration, to answer for the debt of dred and six 50 dollars, besides interest there- the said John B. Jones, or any memorandum on; and was also indebted to the Mississippi or note thereof signed by the said defendant, Union Bank, at its branch in Macon, in the or any other person by him thereunto lawfully County of Noxubee, about the sum of three authorized. And this he is ready to verify, thousand dollars, on a note of four thousand wherefore he prays judgment, etc. dollars, executed by the said defendant and others, payable at Jackson, at the banking house of the said Mississippi Union Bank, at Jackson; and in consideration that the said plaintiff would take up the said last mentioned note to the Mississippi Union Bank, and would also take up the note of the said Jones in the Commercial Bank of Columbus, Mississippi, on which the said Townsend was liable as security as aforesaid, except an amount equal to the amount of said Townsend's liability to the said Mississippi Union Bank, and release the "And the said plaintiff, as to the said plea said Townsend from the balance of his said of the said defendant by him secondly above liability to the said Commercial Bank, he, the pleaded, said, that he, the said plaintiff, by said defendant, then and there agreed with the reason of anything by the said defendant in said plaintiff, to pay on his said liability, in that plea alleged, ought not to be barred from the said Commercial Bank of Columbus, Mis- having or maintaining his aforesaid action sissippi, the same amount which the said plain-thereof against him, the said defendant, betiff might take up for him, the said Townsend, 708*] in the said Mississippi Union Bank. *And the said plaintiff avers, that afterwards, to wit, on the 10th day of May, in the year 1840, he did take up the said Townsend's note, in the said Mississippi Union Bank above stated, according to the said agreement, amounting to the sum of three thousand and ninety dollars. And the said plaintiff further avers, that he did then and there, to wit, on the same day and year last named, at, to wit, in said district, take up the notes of the said John B. Jones, in the said Commercial Bank of Columbus, Mississippi, on which the said Townsend was security as aforesaid, according to his said agreement. And the said plaintiff in fact says," etc., etc.

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The subsequent pleadings were as follows: "And the said defendant, by attorney, comes and defends the wrong and injury, when, etc., and says he did not undertake or promise in manner and form as the said plaintiff hath above thereof complained against him; and of this he puts himself upon the country, etc. "Cocke, Smith & Gholson, "for Defendant.” "And the plaintiff doth the like. "Harris & Harrison, "Plaintiff's Attorneys."

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"Thomas Townsend.

No. 108.

cause he says that he, the said plaintiff, hath
not brought his action to charge the said de-
fendant for the debt of John B. Jones, and for
no other purpose whatever; but that the said
action is brought to charge the said defendant
upon his said several original promises and
undertakings, founded upon the said several
new and sufficient considerations in the said
count of said declaration stated and set forth;
and this he prays may be inquired of by the
country.
Harris & Harrison,
"Plaintiff's Attorneys."
Defendant's demurrer to plaintiff's replica-
tion, filed at December Term, 1842, in the
words and figures following, to wit:

"And the said defendant saith, that the said
replication of the said plaintiff to the said sec-
ond plea of the said defendant is not sufficient
in law for the said plaintiff to have or main-
tain his action aforesaid; and this he is ready
to verify; wherefore he prays judgment, etc.
"Gholson & Smith,

"for Defendant." In this condition of the pleadings, it appeared by the record that the parties went to trial, when the jury found a verdict for the plaintiff, assessing his damages at $3,451.88. The trial took place on the 12th of December, 1842.

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