HUGH A. GARLAND, PLAINTIFF IN ERROR,
v.
GEORGE M. DAVIS, DEFENDANT.

*136 It was argued by Mr. Robert J. Brent, for the plaintiff in error, and Mr. Coxe, for defendant.

Mr. Brent, for plaintiff.

*143 Mr. Justice WOODBURY delivered the opinion of the court.

In the examination of this case, a defect has been discovered in the pleadings and verdict, which was not noticed in the court below, nor suggested by the counsel here.

And the first question is, whether, under these circumstances, it can be considered by us; and if it can be, and is a material defect, not cured or otherwise capable of being overcome, whether it ought to be made a ground for reversing the judgment, and sending the case back for amendment and further proceedings.

There can be no doubt, that exceptions to the opinions given by courts below must all be taken at the time the opinions are pronounced.

But it is equally clear, that when the whole record is before the court above, as in this case, any exception appearing on it can be taken by counsel which could have been taken below. Roach v. Hulings, 16 Peters, 319.

So it is the duty of the court to give judgment on the whole record, and not merely on the points started by counsel. Slacum v. Pomeroy, 6 Cranch, 221; Baird & Co. v. Mattox, 1 Call, 257; 16 Peters, 319.

In United States v. Burnham, 1 Mason, 62, the court alone took notice of the defect, which was the sole ground of its opinion.

In Patterson v. United States, 2 Wheat. 222, it is stated, that "the points made were not considered by the court, and judgment was pronounced on other grounds," and Justice Washington says (p. 24), — "The court considers it to be unnecessary to decide the questions which were argued at the bar, as the verdict is so defective that no judgment can be rendered upon it"; and on that account the proceedings below were reversed. See also Harrison et al. v. Nixon, 9 Peters, 483, 535.

I proceed, then, to consider the nature and character of the difficulty in this case, appearing on the record.

Since discovering it, an opportunity has been given to the counsel for the original plaintiff, which has been improved, to attempt to remove it by argument and authorities. But it still remains, and consists in this.

The declaration is an action on the case, sounding in tort. It *144 sets out no contract except one by way of inducement, made by Mr. Franklin, the predecessor in office of the defendant, and it then proceeds to make the gist of its complaint a wrongful and injurious neglect and refusal by the defendant to furnish a copy of certain laws to the plaintiff, as had been agreed by Franklin. We are required to take this view of the declaration, not only by the averments in it, but by both the present and past positions of the counsel for the plaintiff, that it was intended to be founded on a misfeasance. The plea, however, instead of being "not guilty," as was proper in such case (Com. Dig. Pleader), is non assumpsit, and the plaintiff below, not demurring thereto, nor moving for judgment notwithstanding such a plea, joined issue upon it, and the verdict of the jury conforms to the plea and issue, and merely finds, "that the defendant did assume upon himself in manner and form," &c., and assesses damages, "sustained by reason of the nonperformance of the promise and assumption aforesaid."

Beside the general reasoning in the books, that pleas amounting to the general issue should traverse the material averments in the declaration, and, where the action is one on the case for a tort, should deny the tort by pleading "not guilty," it is laid down in most elementary treatises that "not guilty" is the proper general issue in such cases. See Com. Dig. Pleader.

Beyond this, it has been actually adjudged in an action on the case, after full hearing, that non assumpsit was a bad plea. Noble v. Lancaster, Barnes, 125.

That action was trover, but being still an action on the case, the same principle applied.

Nor is the difference merely formal or technical between actions founded in tort and in contract. 1 Chit. Plead, 418, 229.

Because, when in tort or ex delictu, a set-off is not admissible, nor can infancy be pleaded as to one ex contractu, nor can a plea in abatement be sustained, that all concerned in the wrong are not joined, as it may be in counts on contracts, and a writ of inquiry must issue to ascertain the damages, which is often unnecessary in suits on contracts. A declaration is bad which unites a count in tort with one in contract. 2 Chit. 229, 230; 1 Chitty's Rep. 625, note; 4 D. & E. 794; 8 D. & E. 33.

Various other cases analogous to this might be cited, which tend to show that the present plea is improper, but it is not deemed necessary, in this stage of the inquiry, to enlarge on that point; and I proceed to the next and more difficult question, whether such a plea, though bad on demurrer, should not be considered as good after verdict, and cured by the statute of jeofails.

As a general rule, all informality in a good plea is held to be cured by a verdict, and ought to be, in order not to delay, through a defect of mere form, what may seem to be just. 1 Levinz, 32; 6 Mod. 1; Com. Dig. Pleader, R. 18; 6 Johns. R. 1.

*145 Here, however, there appears to be no informality in a good plea; on the contrary, it looks more like formality in a bad one. And if it be asked, whether there are no cases of bad pleas which are cured by a verdict, we answer, that several exist, but that they are cases where the pleas, though bad on demurrer, because wrong in form, yet still contain enough of substance to put in issue the material parts of the declaration. That is the test.

In the opinion of a majority of the court, the plea under consideration does not contain enough for that purpose; and my apology for examining this point somewhat more in detail must be found in the circumstance, that the court are divided upon it.

The provision by Congress in relation to amendments is to be found in the 32d section of the Judiciary Act of September 24th, 1789, and is similar to that in the 32 Henry 8th, but certainly not broader. See the former, in 1 Lit. & Brown's ed. 91, and the latter in 1 Bac. Abr. Amendment and Jeofail, B.

Under both of these statutes, it has frequently been adjudged, that defects in substance are not cured by a verdict; "for this," says Bacon (Abr., before quoted, E), "would have ruined all proceedings in the courts of justice"; and a defect in substance, in a plea or verdict, is conceded, in all the books, to exist when they do not cover "whatever is essential to the gist of the action."

The present plea, if tried by this test, seems not to be remedied by the verdict, because, so far from traversing all that is essential, nothing is denied, unless it be the inducement. Thus it traverses a promise simply; but the only promise set out in the declaration is one introductory to those material averments, which, as before stated, are the wrongful and injurious acts of the defendant. So far from denying those acts, the plea entirely passes them by, and they are neither put in issue, nor a verdict returned upon them one way or the other. It is true, that, in some actions for a tort, a promise may be referred to in the declaration, which sometimes will constitute one material fact among several others. But it is only one, and not the whole, nor is it the most material fact; that being, in such cases, the misfeasance of the defendant. Nor does the verdict here find this one fact or promise such as averred in the inducement. There it is stated to be made by Mr. Franklin; but, on the contrary, the verdict finds a promise made by the defendant.

On recurring to precedents, several are found which confirm these conclusions. In respect to pleas they show that, when so imperfect and immaterial as this, they are not cured by verdict. And the reason generally assigned, and which pervades the whole, is that before mentioned, namely, that they do not cover or traverse all the gravamen of the declaration. Staple v. Heyden, 6 Mod. 10; Willes, 532; Tidd's Prac. 827; Gilb. C.P. 146.

Hence it has been decided that a plea of non assumpsit to an *146 action of debt is not thus cured (Brennan v. Egan, 4 Taunt. 164; Penfold v. Hawkins, 2 Maule & Selw. 606), because it covers too little or is irrelevant. While, in pursuance of the same rule, it has been held that nil debet to assumpsit (1 Hen. Bl. 664) and "not guilty" either to assumpsit (Cro. El. 470, and 8 Serg. & Rawle, 441), or to covenant (1 Hen. & Munf. 153), or to debt for a penalty (Coppin v. Carter, 1 D. & E. 462, note), are cured by a verdict, because they contain enough to put in issue all which is important in the declaration.

In the present case, the issue manifestly reaches only a part of the case, and is therefore incurable (Hardres, 331); and it comes expressly within the definition of an immaterial issue, which is also incurable. Carth. 371; Bac. Abr. Verdict, K; 2 Levinz, 12; 2 Saund. 319; 2 Mod. 137; Gould's Pl. 506, 509.

This is undoubted, from Williams's definition in Bennet v. Holbech, 2 Saunders, 319, a. He says, — "An immaterial issue is where a material allegation in the pleadings is not answered, but an issue is taken on some point which will not determine the merits of the case, and the court is often at a loss for which of the parties to give judgment."

So in Benden v. Manning, 2 N.H. 291, it is laid down, on circumstances like the present, that "if, instead of assumpsit, a special action on the case had been brought for misfeasance, it is very clear, that no consideration need have been alleged or proved. The gist of such an action would have been the misfeasance, and it would have been wholly immaterial whether the contract was a valid one or not." 5 D. & E. 143; 2 Wils. 359; 1 Saund. 312, note 2.

If we should next compare this plea and issue in their substance with a few others less general, that have been solemnly adjudged to be bad, and not cured by verdict, though found for the plaintiff, the result will be the same.

It may be seen in Tryon v. Carter, 2 Strange, 994, that, in debt on bond, payable on or before the 5th of December, the defendant pleaded payment on the 5th of December, and issue being joined and found against him, the court still awarded a repleader, as it could not be inferred from these pleadings that payment may not have been made before the 5th.

See another in Enys v. Mohun, 2 Strange, 847, where to covenant on a lease to C., averred to come by assignment to the defendant, the plea was that C. did not assign to him, and verdict was for plaintiff. But the court awarded a repleader, as the issue found does not cover all the important parts of the declaration; namely, that the lease may have come to the defendant not from C. direct, but by mesne assignments. Same case, in 1 Barnardiston, 182, 220. See also other cases. Yelv. 154; Peck v. Hill, 2 Mod. 137; Read v. Dawson, ibid. 139; Stafford v. Mayor of Albany, 6 Johns. 1; Com. Dig. *147 Pleader, R. 1 and 2, V. 5; 1 Chit. Pl. 625, 695; 6 D. & E. 462; 1 Saund. 319, n.

In Patterson v. United States, 2 Wheat. 224, Judge Washington lays down the whole law precisely as we view it, in respect to a verdict varying materially from the issue, and which principle applies equally well to a plea varying from the substance of the declaration. He says, — "Whether the jury find a general or a special verdict, it is their duty to decide the very point in issue, and although the court in which it is tried may give form to a general finding, so as to make it harmonize with the issue, yet if it appear to that court or to the appellate court that the finding is different from the issue, or is confined only to a part of the matter in issue, no judgment can be rendered on the verdict." And on error the proceedings below were reversed.

After all this, it is hardly necessary to state further, by way of precedent, that in Noble v. Lancaster, Barnes's Notes, 125, before cited, this very point was decided. Non assumpsit was pleaded to an action on the case (e.g. trover), and was held not to be cured by a verdict, but was bad in arrest of judgment.

Looking, then, to many precedents, as well as correct principles in pleading, the issue presented and tried here is not only an improper one for the case; but, not containing enough to cover all that is material in the declaration, and being thus imperfect in substance, it "does not determine the right between the parties," and is not cured by the verdict or the statute of jeofails.

A moment as to the defects in the verdict. It is difficult to see how an immaterial and bad plea can be cured by a verdict, which, as in this case, is quite as immaterial as the plea. Indeed, in some respects, the verdict here, compared with the declaration, is more defective and irremediable than the plea.

It is laid down in Comyns's Dig. Pleader, S. 24, that a verdict is even void if it be "variant from the declaration," and he gives as one illustration from 2 Roll. 703, l. 35, "in assumpsit, if it finds a different promise."

In the present case, the promise is found not only different from that laid in the declaration as inducement, but the verdict varies in other essential respects from the declaration, finding nothing of any of the misfeasance charged in it on the defendant.

The defect here, then, is in the verdict as well as plea, and though a mere informality in the former is cured by the act of Congress as to amendments (16 Peters, 319), yet the defect here is similar in both, and as just shown, being on principle in both a defect in substance no less than form, is uncured. (Stearns v. Barrett, 1 Mason's R. 170, and 2 Mason's R. 31.)

But several arguments have been offered against a reversal of the judgment and further proceedings, and in favor of rendering judgment for the plaintiff, on this record, though the plea, issue, and *148 verdict are all defective in substance, and do not show which party is entitled to recover, on the real merits in dispute, or that they have been legally tried.

These arguments it is our duty to examine. One is, that the whole merits, according to the evidence reported, may have actually been considered and passed upon in the court below under this plea and issue. But it is a sufficient answer to this, that if so done it was illegally done, no evidence being competent under that issue except the promise described in it, and no opinion of the jury or the court being regular or proper under it, except as to that promise alone. Harrison et al. v. Nixon, 9 Peters, 484.

There are many cases showing that the evidence must be limited to the plea. Mar. Ins. Company v. Hodgson, 6 Cranch, 206; 4 Wheat. 64, in case of the Divina Pastora. The court say you must "not admit the introduction of evidence varying from the facts alleged." 9 Peters, 484. The probata should conform to the allegata. Boone v. Chiles, 10 Peters, 177.

In Barnes v. Williams, 11 Wheat. 416, it is said, — "Upon inspecting the record, it had been discovered that the special verdict found in the case was too imperfect to enable the court to render judgment upon it." A certain fact was important to the recovery. "Although in the opinion of the court there was sufficient evidence in the special verdict from which the jury might have found the fact, yet they have not found it, and the court could not upon a special verdict intend it."

These illustrations and cases tend to show the difficulties in forming an opinion on any thing not found or apparent on the record; and the impropriety of conjecturing and pronouncing on the real merits, when both the issue and verdict are defective in substance in relation to them. But, in this case, if the promise averred to have been made by Franklin was treated at the trial as one made by Garland, so far as regarded its operation and his duty, — which has been the argument of the original plaintiff's counsel before us, and which may, for aught we now decide, be correct, — then we should be called upon to render judgment against Garland merely on such promise and a breach of it.

That is every thing which the verdict finds or the issue presents, in the most favorable view.

But that being a promise confessedly on the whole evidence made by the original defendant, or his predecessor, as a public agent, if now rendering final judgment, we should probably, in that view of the record (no tort having been put in issue or found by the verdict), be obliged to decide against the original plaintiff on the merits, because public agents are not usually liable on mere contracts or promise made in behalf of their principals. (See on this Hodgson v. Dexter, 1 Cranch, 345; Macbeath v. Haldimand, 1 D. & E. 172; Fox v. Drake et al., 8 Cowen, *149 191; 2 Dall. 444; Osborne v. Kerr, 12 Wend. 179; Story on Agency, §§ 302-308; Lord Palmerston's case, 3 Brod. & Bing. 275; Freeman v. Otis, 9 Mass. R. 272, quære in part.)

On the contrary, however, if the action is to be considered as brought, not on any promise except as inducement, but on a wrongful act or misfeasance, as the plaintiff sets out his case in his declaration and still contends to be the truth, then it seems manifest that — nothing on that misfeasance, the essential point of the action, having been either traversed in the plea or found by the verdict — there is nothing upon which judgment can legally be rendered for either party on the merits. It will be seen that we come to this conclusion, not because cases are wanting which hold that officers not judicial, nor having any discretion to exercise on a subject (Wheeler v. Patterson, 1 New Hamp. R. 88; Kendall v. Stokes, 3 Howard, 98; 11 Johns. 114; 2 Ld. Raym. 938), are liable in tort for misfeasances, whenever they are violations of public laws or official duties (Shepherd v. Lincoln, 17 Wendell, 250; 5 Burr. 2709; 6 D. & E. 445; Gidley, Ex. of Holland v. Lord Palmerston, 7 J.B. Moore, 91; 15 East, 384; 9 Clark & Fin. 251; 1 Bos. & Pul. 229; Little et al. v. Barreme et al., 2 Cranch, 170; 13 Johns. 141; Tracy et al. v. Swartwout, 10 Peters, 95), though others consist of unsuccessful attempts to charge persons in tort for matters which originated and existed in fact only as contracts (Bristow et al. v. Eastman, 1 Esp. N.P. Rep. 172; Jennings v. Rundall, 8 D. & E. 335), or which were mere nonfeasances (20 Johns. 379; 12 Mod. 488; 1 Ld. Raym. 466; 4 Maule & Selw. 27; Story on Agency, § 308); but because the issue and verdict present nothing in relation to any such misfeasance, and our opinion is intended to be confined to the questions on the pleadings, without any decision upon the merits. Indeed, it would be difficult to express one on them where we have been unable to agree on one, and where a majority of the court think the pleadings are not in a proper state to enable us to give one satisfactorily.

In this state of things, the most obvious course to assist us to "reach the law and justice of the case" would be to reverse the judgment below and award a repleader. This would not deprive either party of any merits they may have, and may be able hereafter to show on proper pleadings, and costs would indemnify the party who has been delayed by any bad pleading, so far as he ought to be indemnified considering his own fault in this case, in joining and trying an issue immaterial or radically insufficient to settle the cause of action, rather than demurring to the plea seasonably. But such a course is objected to on certain grounds not yet considered, and which it is our duty to notice. One of them is, that when a plea or verdict is radically defective, judgment ought to be rendered, notwithstanding the verdict, for the party *150 whose pleadings are right; and another, a branch of this, is, that a court ought in no case to permit the party who commits the first error to have the judgment reversed and be allowed a repleader, unless, perhaps, when the verdict is in his favor.

Though several of the text-books lay down rules like these in broad terms, it is first to be noticed that some state them with a quære or doubt. (1 Chit. Pl. note, 522, 633, and Com. Dig. Pleader.) In others, the cited authorities do not support them, as Gilbert, quoted in Tidd, 828. In others, the counsel, rather than the court, recognize them. Kempe v. Crews, 1 Ld. Raym. 170; Taylor v. Whitehead, Doug. 749. In others, the court refer to them, but do not appear to have founded their decision on them, as Webster v. Bannister, Doug. 396, where the issue covered the merits (3 Hen. & Munf. 388), and in others, matters still different existed, which justified the judgment given, independent of these rules.

Thus, if a plea be bad, but still confesses the cause of action without setting out a sufficient avoidance, judgment can with propriety be rendered for the plaintiff on such confession, if the declaration be good. Rex v. Philips, 1 Str. 397; Jones v. Bodingham, 1 Salk. 173: Gould on Pl. 509; Simonton v. Winter et al., 5 Peters, 141; Kirtley v. Deck, 3 Hen. & Munf. 388; 6 Mod. 10; Tidd, 827.

So, if the plea be a mere nullity, — putting nothing material in issue, — judgment is at times allowed to be signed as for want of a plea, as if nil dicit, provided the declaration be good. 4 Taunt. 164; 2 Maule & Selw. 606.

So, if the plea be evidently a sham plea, or fictitious, a like course is warranted. 10 East, 237; Tidd, 831.

Or if the plea, though neither of these, still be defective, but sets out such facts as demonstrate that the party has no merits, and that no amendment could be made which would avail him any thing, or, in other words, nothing is left in the case that can be mended. Gould on Pl. 514, § 39; Tidd, 831; Henderson v. Foote, 3 Call, 248.

It is incidental circumstances like these, affecting the merits and not adverted to always in decisions or elementary treatises, which have governed most of the opposing cases, rather than a mere technical, and in some degree arbitrary rule, without reference to the merits, and which would bar a party claiming to possess them from having them tried on a repleader or amendment, on complying with equitable terms.

In the case now under consideration, the plea comes under neither of these categories, neither confessing a cause of action, nor appearing to be a sham or fictitious plea, nor disclosing enough to show the defendant to be without any good defence. On the contrary, a defence appears, which the original defendant seems always *151 to have urged with great confidence as being good. Under these circumstances, then, repleading or something equivalent would seem proper to do justice between the parties, and to carry out the principle of the statutes of jeofails, so as not to prevent a judgment on the merits, because some "slip," as Lord Mansfield calls it, has happened on the part of the defendant in his plea. Rex v. Philips, 1 Burr. 295; Tidd, 828; Gould on Pl. 508, §§ 31, 40. If the right be not put in issue and may be, a ruling to permit it seems reasonable. Staple v. Heyden, 6 Mod. 2.

The true meaning of these technical rules can be made rational and consistent, if they are held to apply to cases where good grounds are apparent for rendering final judgment. Then it may well be rendered against him who committed the first material fault in the pleadings; and which fault has not afterwards in any way been cured.

But if no such grounds appear, in consequence of the imperfections of the pleas and verdict, final judgment cannot properly be rendered; and the rules are inapplicable; and the judgment below should be reversed, so as to furnish an opportunity to remove those imperfections and reach the justice of the case by amendments or repleaders. And so far from the party not being permitted to enjoy this indulgence who committed the first fault, he is the only one who needs it, and in whose behalf, under the liberal spirit of modern times, all statutes of jeofails are passed. Nor can the opposite party suffer by this course in respect to the merits, as they are left open. Or in respect to cost and delay, as he should be indemnified for them, in the manner before mentioned, by equitable terms, for allowing any amendments.

In this view of the subject, it is of no consequence for which party the defective verdict was found, except at times the fact in it may be an indication of merits in that party who has the postea, so far as that fact can affect the merits. But in this case the fact found was immaterial in relation to the merits, as already shown; and the object now is, to prevent such immaterialities from making a final disposal of the case, — to prevent substance from being sacrificed to form, — and where merits may exist, to adopt such a course as will present them to the court intelligibly, for a final adjudication of the real justice of the case.

To all this, in an advanced era of jurisprudence, it will hardly do to repeat from some of the old books, that a party is for ever to be barred either for the badness or the falsity of his plea, if it happens to be imperfect and is found against him, though he has not confessed the declaration, nor stated any facts in his plea inconsistent with merits.

Much more, too, is it proper, if not indispensable, in a case like this, so defective on the record as not to justify any decision about the merits, to adopt a course which shall not bar the due consideration *152 of them in the end, and which shall be for the benefit and guide of the court even more than a party, so as to prevent a leap in the dark, and which for these and other reasons shall let the cause be reopened, and prepared and tried in a manner to bring the whole of the merits legally before both the court and the jury. Cro. Eliz. 245; 5 Hen. & Munf. 393; Baird & Co. v. Mattox, 1 Call, 257.

Considering the character and position of this tribunal, as one of the last resort in administering justice, and considering the increased disposition of the age in which we live to eviscerate the truth, and decide ultimately only on the real merits in controversy between parties, or in the words of Justice Story (1 Story, 152, in Bottomly and the United States), as to "technical niceties," considering "the days for such subtilties in a great measure passed away," it seems a duty of our own motion to give all reasonable facility to get the record in an intelligible and proper shape before we render final judgment.

As proof that such a course is sometimes deemed proper, to aid a court as well as a party, notwithstanding the technical rules before mentioned, it is stated in Gould on Pl. 507, § 28, that judgment may be arrested after verdict, "if the issue is immaterial, so that the court cannot discover, from the finding upon it, for which party judgment ought to be given." §§ 23 and 22.

So, though Gould lays down these rules before named, he says (page 514, § 40), if a special plea show there may be a good justification, though it has been badly pleaded, judgment must be arrested, and a repleader awarded, as it appears a good issue might be formed; and when this is the case, "the ends of justice require that an opportunity for forming such an issue should be afforded." And in respect to objections in such cases to indulgence to a party whose plea is bad, Gould, 508, says in a note: — "The true answer to this inquiry appears to be, that the awarding a repleader in such case was originally rather an act of indulgence to a party, who tendered an improper issue, than a matter of strict right. An indulgence grounded on the presumption that the issue was misjoined through the inadvertence and oversight of he pleaders, and that a farther opportunity to plead would probably result in a material issue decisive of the merits of the cause," &c.

There are also some very high precedents against the application of these technical rules in cases and circumstances like those now under consideration. Such was the case of Rex. v. Philips, 1 Burr. 302. The reasoning of Lord Mansfield on this whole subject is directly in point, as well as the case itself, and contains that beautiful correction by him of a much abused maxim, in which he says it is the duty of a good judge to amplify justice rather than his jurisdiction, "boni judicis est ampliare justitiam, not jurisdictionem." There, after verdict for the plaintiff, he allowed an amendment of *153 the plea on payment of costs, being satisfied that "the ends of justice require that an opportunity for forming a proper issue be allowed."

There are many other cases, some ancient and some modern, which fully support the same conclusion. See Enys v. Mohun, 2 Strange, 847, and S.C., Barnardiston, 182, 220; Tryon v. Carter, 2 Strange, 994; Love v. Wotton, Cro. Eliz. 245.

In Serjeant v. Fairfax, 1 Levinz, 32, the plea was defective as not taking issue on enough, though it denied part of what was material in the declaration. Verdict was found for the plaintiff. This is in substance the very case now under consideration. Counsel contended, — "When the issue is found against the pleader, judgment shall be for the plaintiff; but if for him (the pleader), not. But Justice Twysden said, that if an improper issue is taken, and verdict given thereon, judgment shall be given thereupon, be it for the plaintiff or defendant. 2 Cro. 575. But an immaterial issue is where, upon the verdict, the court cannot know for whom to give judgment, whether for the plaintiff or for the defendant, as in Hob. 175, and with him the chief justice and Wyndham wholly agreed, and awarded a repleader."

In Simonton v. Winter et al., 5 Peters, 141, the verdict was for the plaintiff, and yet, the plea being bad, the court reversed the judgment, as the cause of action was not confessed in the plea, and remanded the case with an order for a venire de novo.

See also in point Green v. Baily, 5 Munford, 246, and Baird & Co. v. Mattox, 1 Call, 257.

And in 9 Wheaton, 729, the pleadings are not given, but Justice Story said there was great irregularity and laxity in them, and "it is impossible, without breaking down the best settled principles of law, not to perceive that the very errors in the pleadings are of themselves sufficient to justify a reversal of the judgment and an award of a repleader," and without "appropriate pleas," "it would be difficult to ascertain what was to be tried or not tried."

See also Harrison et al. v. Nixon, 9 Peters, 483.

All that remains is to consider the best form of carrying these conclusions into effect.

In some of the cases before cited, the court have not only reversed the judgment, but ordered a repleader. But in others, it is said that this cannot be done after a writ of error. 6 Mod. 102; 2 Keb. 769; Com. Dig. Pleader and Verdict.

Such, probably, has always been the practice in relation to not ordering it by the court below, after a writ of error is sued out, till the case is again reopened; but it was once not the practice in the higher courts of error in England. See 2 Saund. 319; Holbech v. Bennett, 2 Levinz, 12.

Nor is it the practice now in some of the higher courts in this country. In Green v. Baily, 5 Munford, 251, judgment was reversed *154 on the writ of error, the pleadings set aside after the plea, and a repleader awarded.

The 32d section of the Judiciary Act, before referred to, expressly empowers "any court of the United States" "at any time to permit either of the parties to amend any defect in the process or pleadings." Lit. & Brown's ed. 91.

All know that a repleader is little more in substance than permitting an amendment.

But most of the precedents in this court allowing amendments after a writ of error are in maritime or admiralty proceedings, and I have found none of those in the form of repleaders. In 4 Wheat. 64 (though one in admiralty, where less strictness prevails in pleading than at common law), Chief-Justice Marshall said, — "The pleadings in this case are too informal and defective to pronounce a final decree on the merits"; and the judgment was therefore reversed, and the cause remanded, with directions to permit the pleadings to be amended.

See also a like order in the Divina Pastora, 4 Wheat. 63, and in case of the Edward, 1 Wheat. 264, and case of the Samuel, 1 Wheat. 13; Harrison et al. v. Nixon, 9 Peters, 483.

In cases at common law, the form is usually somewhat different. In 5 Peters, 141, the form was suited to the case, and judgment not only reversed, but a venire de novo ordered, and in United States v. Hawkins, 10 Peters, 125, Justice Wayne says, — "A venire de novo is frequently awarded in a court of error, upon a bill of exceptions to enable parties to amend," — and "amendments may, in the sound discretion of the court, upon a new trial, be permitted."

See further, 2 Wheat 226; Barnes v. Williams, 11 Wheat. 416; Bellows v. Hallowell & Augusta Bank, 2 Mason, 31; Peterson v. United States, 2 Wash. C.C. 36.

See the form in England. Parker v. Wells, 1 D. & E. 783, and Grant v. Astle, Doug. 922.

In Pollard v. Dwight, 4 Cranch, 432, the court said, let judgment "be reversed and the cause remanded for a new trial."

Mr. Lee prayed "with leave for the defendants below to amend their pleadings."

The court said "that the court below had the power to grant leave to amend, and this court could not doubt but it would do what was right in that respect." Similar to this was the course in Day v. Chism, 10 Wheat. 404.

And in United States v. Kirkpatrick, 9 Wheat. 738, the court not only reversed the judgment, and awarded a venire de novo, but gave "directions also to allow the parties liberty to amend their pleadings." So 9 Wheat. 540.

See on this further, Mar. Ins. Co. v. Hodgson, 6 Cranch, 218; 7 ibid. 47, 497; 9 ibid. 244; 1 ibid. 261, 13; 10 ibid. 449; 4 ibid. 52; 16 Peters, 319; Moody v. Keener, 9 Porter, 252.

*155 In conclusion, then, as by several cases in England the allowance of a repleader in courts of error seems to have gone into disuse in modern times, and as the practice in common law cases in this tribunal, though otherwise in some of the States, has usually been, not to direct either amendments or repleaders in cases like these, but to reverse the judgment and remand the cause to the court below for further proceedings there, we shall conform to that practice in the present instance.

Let the judgment below be reversed, and the case remanded for further proceedings.