
    George R. Deut, President of the Board of Trustees of School Lands in the County of Jefferson, vs. John B. Coleman et al.
    Where, to an action on a note, the defendant plead an accord and satisfaction by the sale and conveyance of a tract of land, which the plaintiff accepted and received in discharge and satisfaction of the note, to which plea the plaintiff replied, denying both the conveyance of the land to him, and his acceptance of it, it was held, on demurrer to the replication, that it was a good answer to the plea, and was neither double, uncertain, nor objectionable.
    A plea to an action on a note, made by several, that two of the defendants were sureties of the principal debtor, and that for a valuable consideration paid to the plaintiff, he gave indulgence to their principal for twelve months, without their consent or agreement, is a good plea in bar of the action.
    On overruling a demurrer to a plea to one count of a declaration, it is error to give judgment on the whole declaration in favor of the defendants; the plaintiff might establish his case under the second count against them.
    Under the act of 1840 (Sheet Acts, p. 133,) to regulate the practice of the circuit courts, which provides, “ that if it be discovered that the pleadings are defective, it shall be the duty of the court, and the judge holding the same, is hereby required to cause the same to be amended and perfected, so that the merits of the controversy shall be fairly put to the jury,” it is no longer in the discretion of the circuit courts to grant amendments, but it is matter of obligation and of right.
    Therefore, where the plaintiff in an action filed a replication to the plea of the defendant, and the court below thought the replication bad, it was held by this court, that instead of turning the plaintiff out of court, the judge should have caused an amendment to be made, suited to his views of the law, and thus have secured a trial on the merits.
    In error from the circuit court of Ciaiborne county; Hon. George Coalter, judge.
    George R. Deut, President of the Board of Trustees of School Lands, of township number ten, range one east of the basis meridian, in the county of Jefferson, and state of Mississippi, sued John B. Coleman, Asa P. Jones, and Levi C, Harris, in assumpsit, upon a promissory note.' The declaration contained the count upon the note, and the common counts. The defendants plead ten pleas ; part of which only it will be necessary to notice. One was as follows : “ And for a further plea in this behalf, as to the said first count of the said declaration, the said defendants by leave, &c., say, actio non, &c., because they say, that, after the making of the promissory note in the said first count mentioned, and before the day of payment in the said note specified, to wit, on the 10th day of March, A. D. 1841, at the county aforesaid, the said defendant, Coleman, bargained, sold, and conveyed to the said plaintiff, a certain tract of land, situate in the county of Jefferson, aforesaid, in full satisfaction and discharge of the said promissory note, in said first count specified, which the said plaintiff then and there accepted and received in full payment and satisfaction of the said promissory note in said first count mentioned, and this the said defendants are ready to verify.”
    To this plea, the plaintiff replied, “ that the said defendant, Coleman, did not bargain, sell, and convey unto him, the said plaintiff, a certain tract of land, situate in the county of Jefferson, in full satisfaction and discharge of the said sum of money in the said promissory note in the said plaintiff’s declaration mentioned, and that he, the said plaintiff, did not then and there receive and accept the same, in full satisfaction and payment of the said sum of money in the first count of the plaintiff’s said declaration mentioned, and this he prays may be inquired of by the country,” &c.
    To this replication, the defendant demurred, and assigned for cause, that it was broader than the plea, was double, and tendered two issues; was not an answer to the plea, and contained a negative pregnant.
    The court sustained the demurrer to this plea, and gave judgment final thereon for the defendants.
    The defendants, James and Harris, also plead, in substance, that they were the sureties of their co-defendant, Coleman, and that for a valuable consideration paid to the plaintiff, he gave indulgence to Coleman for twelve months, on the note sued on, without their consent or agreement. These pleas extended only to the first count. The plaintiff demurred to them, and the court overruled the demurrer, and entered judgment final thereon for defendants. There were various other pleas, declarations, and demurrers, but they were not passed on by this court.
    Deut prosecutes this writ of error.
    
      J. p. Thrdefier, for plaintiff in error.
    1. The traverse in the replication, was an exact denial of the plea, and nothing more; and if objectionable, the plea was equally so. 1 Chit. PI. 594; 4 T. R. 157. Robinson v. Rayley, 1 Burr. 316; Boils v. Purvis, 2 Black. 1028. Jones v. Kitchen, 1 B. & P. 80, Op. of Eyre, Oh. J.; Strong v. Smith, 3 Caines, 160; Willes, 410; Strong v. Smith, 3 Caines, 165.
    2. The replication and plea both being bad, if either, the judgment should have been for the plaintiff, on sustaining the demurrer to the plea. Miles v. Myers, Walk. R. 379; Wren v. Spann, 1 How. (Mi.) Rep. 115.
    3. The plea of accord and satisfaction was bad, because Deut, the president, sued in his fiduciary capacity upon a note payable to him in his trust character. By the statutes which create him, and confer all his power on him, he had no power to take the land in discharge of the note, even if he had done so; in doing so, he would transcend-his power, and his act would be void. Acts of 1836; How. & Hutch. 136, 650; 6 How. 328; 1 S. & M. 17; 3 S. & M. 609 ; 2 S. & M. 81; lb. 514; 1 S. & M. 248; 3 How. (Mi.) Rep. 314; 7 S. & M. 24; 3 S. & M. 271; lb. 468; 7 How. (Mi.) Rep. 408; lb. 554; Prosser v. Leatherman, 4 How. (Mi.) Rep. 237; 9 Cow. 320.
    4. The court certainly erred in giving judgment on the whole declaration on demurrer, to pleas which only purported to extend to the first count in the declaration.
    5. The pleas which set up an extension of time to the principal, are bad. 1 Holt, 84; Reynolds v. Ward, 5 Wend. 505; 4 How. (Mi.) Rep. 690 ; McLemore v. Powell, 12 Wheat. 554; 1 Leigh. 436.
    
      James H. Maury, on the same side,
    relied on the same points taken by Mr. Thrasher, and commented on them.
    
      H. T. Ellet, for defendant in error.
    I. The decision of the court below, which goes to the whole case, -and sustains the final judgment in favor of the defendants below, was given on the demurrer to the replication to the third plea. Gould’s PI. 431, sec. 24.
    2. The replication is bad. It is competent to traverse several facts going to constitute one point of a plea, but not several points requisite to make a good plea. 1 Chitty PL 557.
    
      To a plea of accord and satisfaction, the delivery and acceptance cannot both be denied. 1 Saund. PI. and Ev. 24; 1 Chit. PL 553, 589, 592; Steph. PI. 256.
    For the form of the plea and replication, see 1 Saund. PI. and Ev. 26 ; Story on Pleading, 174.
    The plaintiff may reply either that there was no such accord, or, that the defendant did not pay or deliver in satisfaction; or that he himself did not accept or receive in satisfaction; either of which is traversable. Story’s PI. 176 ; citing 5 Mod. 86; 2 Salkeld, 627.
    Declaration in covenant to make a deed on request, and alleging a request and refusal. Plea traversing both request and refusal, held bad. Connelly v. Pierce, 7 Wend. 130.'
    Plea that the note sued on was made jointly with B., and that the plaintiffs have released B. A replication, traversing both the joint making and the release, was held bad. Tubbs v. Casioell, 8 Wend. 129.
    Where several facts are traversed, it must be done in the disjunctive, not copulative. Goram v. Sweeting, 2 Saund. R. 207; 1 Bing. N. C. 323; 5 Dowl. 162.
    If the demurrer was properly sustained to this replication to the third plea, the final judgment in favor of all the defendants must be affirmed. Gould PI. 431, sec. 24.
    3. These pleas, pleaded by the sureties, are good. The fifth alleges the giving of time to the principal debtor, without consent of the sureties, in consideration of the payment of five hundred dollars on account of the note sued on. Newell et al. v. Hamer et al. 4 How. 692; Rupert v. Grant, 6 S. & M. 433 - 439.
   Mr. Justice Clayton

delivered the opinion of the court.

This is an action of assumpsit with two counts upon a promissory note, in which there are ten pleas, four replications and nine demurrers, from which the merits of the case are to be extracted. It will be unnecessary to give to each a separate examination. The issues of fact are yet undisposed of; but judgment was rendered for the defendants below upon the issues in law.

The third and fourth pleas set forth an accord and satisfaction, by the sale and conveyance of a tract of land, which, it is alleged, the plaintiff accepted and received in full discharge and satisfaction of the claim. The replications to these pleas deny both the conveyance and the acceptance; and on this state of pleadings judgment was rendered for the defendants in the court below.

It is insisted in argument that the replications are bad; that they might properly deny either the conveyance or the acceptance, but they ought not to deny both. To this we reply, that the replications as they stand constitute but one answer to the pleas. The conveyance and acceptance in satisfaction are both averred in the pleas. It might possibly have been sufficient to deny either, but it was not improper to deny both. The gist of the plea was the satisfaction of the claim ; the substance of the replication was the denial of the satisfaction, a plain and simple issue not broader than the pleas, nor involving duplicity, uncertainty or other objectionable matters. The judgment of the court below, on this point, was erroneous.

■ In the fifth and sixth pleas, two of the defendants aver that they were the sureties of the defendant, John B. Coleman, and that for a valuable consideration paid to the plaintiff, he gave indulgence to their principal for twelve months, without their consent or agreement. These pleas however, on their face, are confined to the first count in the declaration. The plaintiff filed demurrers to them, which were overruled by the court, and final judgment rendered for the two defendants.

There is no valid objection to these pleas, and the demurrer was properly overruled ; but as they extended only to the first count in the declaration, it was error to give judgment on the whole declaration in their favor. By possibility the plaintiff might establish his case under the second count against them, and the court could not, in advance of the trial by the jury, on the plea of non assumpsit, determine that point.

Some of the demurrers were decided in favor of the plaintiff in error, and as the defendants have not complained of this, it is not necessary to speak of them.

The third section of the act of 1840, to regulate the practice of the circuit courts, in substance provides, “ that if it he discovered that the pleadings are defective, it shall be the duty of the court, and the judge holding the same is hereby required to cause*the same to be amended and perfected, so that the merits of the controversy shall be fairly put. to the jury.” Acts of 1840, p. 133.

Under this law, what was formerly discretion in the circuit courts, in regard to amendments, has become matter of obligation and of right. When it decides any portion of the pleadings to be defective, it should also direct the same to be amended and perfected, so as to place the merits of the controversy fairly before the jury. In this case, instead of turning the plaintiff out of court, for a supposed defect in his replication, the judge should have caused an amendment to be made, suited to his views of the law, and'thus have secured a trial upon the merits.

We have no doubt that the intention of the legislature, in passing this law, was to prevent the decision of causes, upon any other ground than their merits, and we shall do all in our power to carry that intention into effect. See Price v. Sinclair, 5 S. & M. 258.

The judgment is reversed, and cause remanded for further proceedings.  