
    Joseph Gray, administrator of Isham Palmer, deceased, vs. E. P. Thomas et al.
    If a verdict be rendered in a cause at one tdiiix.of the circuit court, and from any reason the judgment of the court thereon be not entered, it is competent for the court, at a subsequent term, to order a judgment according to the verdict to be entered nunc pro tunc; but if there be no verdict in the record, the court cannot at a subsequent term order a verdict and judgment to be entered nunc pro tunc; if the record do. not show that a verdict was rendered, it cannot be supplied at a subsequent term.
    A bill of exceptions to the ruling of the court at the trial, sealed at a term subsequent to the trial, though the exceptions were taken at the time, is incompetent.
    When an administrator is sued at law, he need not plead payment specially ; he is allowed by statute to prove it under the general issue.
    Where a note is payable to bearer, and the note is sued upon it, he may prove, by one through whose hands the note had passed in the course of business before it reached the plaintiff, that the note was paid.
    
      In an action on a note against the administrator of the maker, it is not competent for the defendant, by way of establishing the maker’s incapacity to make the note, to show that the maker had been declared incompetent to make a will; of date older than the note, by reason of insanity.
    In error from the circuit court of Hinds county; Hon. George Coalter, judge.
    On the 22d day of January, 1845, E. P. Thomas & Co. sued to the May term, 1845, Joseph Gray, administrator of Isham Palmer, deceased, in an action of assumpsit upon a note made by the intestate for $1400, payable to John C. Perry or order, and by him indorsed to “ bearer without recourse.” The defendant-plead non-assumpsit by his intestate.
    After the plea and similiter, the record continues: “ November term, December 3, 1846. E. P. Thomas & Co. v. Joseph Gray, administrator of Isham Palmer, deceased; came the parties aforesaid by attorneys, and it is ordered by the court that the judgment in this case at the last term of thfs court be entered now as for then, in these words, to wit: ‘Came the parties aforesaid, and thereupon came a jury, to wit, [here follow the jurors’ names;] who being duly elected, tried and sworn, the truth to speak upon the issue joined, upon their oath do say: we, the jury, find for the plaintiffs, and assess their damages at nineteen hundred and thirty-two dollars.’ It is therefore considered by the court that the plaintiffs recover of the defendant the damages assessed by the jury aforesaid, to be levied of the goods and chattels of the deceased in the hands of the administrator, &c., and also costs of suit.”
    The record continues: “November term, 1846, December 12th, 1846. Motion to set aside the judgment and verdict in this case overruled.” Then follows the bill of exceptions; from which it appears, that on the 27th of April, 1846, a trial was had; at which, after the plaintiffs read the note sued on, the defendant offered to prove by Richard O. Edwards, that the note had been executed for double the amount intended by the parties, by mistake; and that the whole amount due on the note had been paid. The witness stated that the note had passed through his hands, in the course of trade, before it came into the possession of the plaintiffs, but he had never indorsed it. On objection, the court below would not let him testify.
    The defendant also filed at the same term, November, 1846, an affidavit for a new trial, on the ground that a will of Palmer’s, of date older than the note sued on, had on an issue of devisavit vel non been declared invalid by reason of his insanity ; and that this fact was not known to him until after the trial.
    The administrator sued out this writ of error.
    
      J. J. Deavenport, for plaintiff in error.
    1. Can payment be proved under the general issue.of non-assumpsit, as pleaded in this case ? It is contended that proof of payment can only be made under a plea drawn under sect. 61, of Hutch. Code, p. 847, filing his account, stating distinctly the nature of such payment. Is not this law repealed, so far as negotiable paper is concerned, by the act of May 13, 1837, Hutch. Code, p. 852, art. 7, sections 1,'2, and 3? Section 3d of this act provides, that the court shall receive the plea of non-assumpsit and no other, and that all matters of defence may be proved under such plea. However this may be, administrators shall not be compelled to plead specially to any action or suit at law, brought against them in their said capacity; but may, under the general issue, give any special matter in evidence. Vide Hutch. Code, p. 669, sect. 105, and Herrington v. Herrington, Walk. Rep. 305.
    2. R. O. Edwards’s competency is established by the following authorities : 1 Greenl. Ev. p. 541, § 383, 384, 385, and notes; Williams v. Miller, 10 S. & M. 139.
    3. That the judgment nunc pro tunc was erroneous we think proved by the following authorities : Burney v. Boyett, 1 How. Rep. 39; Dickson v. Hoff’s Adm’r, 3 lb. 165; Bussell and Wife v. McDougall, 3 S. & M. 234. •
    4. The showing made in the affidavit of Gray, that the will of the maker of the note, which bore a date antecedent to the date of the note, had been declared void on account of his incompetency to make a will, and consequently, that he was not competent to contract, was sufficient to entitle him to a new trial. >
    
      D. W. Adams, and Yerg'er and Scott, for defendants in error.
    1. It has been settled, on grounds of public policy, that a party negotiating an instrument cannot afterwards be heard to dishonor or impeach it. , Coleman v. Wise, 2 Johns. 165 ; United States Bank v. Dvnn, 6 Peters, 51; Mann v. Swann, 14 Johns. 270; Barton v. Wilkins, 1 Mis. R. 74; Warren v. Merry, 3 Mass. 27; Parker v. Lovejoy, lb. 565; Winton v. Saidler, 3 Johns. Cas. 185. Parol evidence not admissible in an action by an assignee against the maker of a note to prove a different contract. 1 Phil. Evid. 555; Trustees v. Stetson, 5 Pick. 506; Dow.v. Tuttle, 4 Mass. 414; Downs v. Webster, Bray. Rep. 79.
    2. But if the testimony offered was objectionable in any part, it was properly overruled as to the whole. Proof of payment could not be offered, because payment was not pleaded. Manning v. Wheatland, 10 Mass. 502.
    3. The judgment nunc pro tunc is good. The record shows that the defendant had notice, or that the defendant appeared by counsel. It is presumed that the judgment in all respects was regulan The defendant being present, took no exception to the entry of the judgment in the court below.
    4. This is a different case from where an amendment is applied for of a previous judgment, &e. as required by our statutes. In such case parties, are out of court, but in this case the jury, at a previous term, found a verdict. No judgment was entered up; the case was continued by operation of law, until the next term, and the parties were in court. All that was necessary was to enter a motion to enter the judgment nunc pro tunc.
    
   Mr. Justice Thacher

delivered the opinion of the court.

This action of assumpsit, founded upon a promissory note, was instituted to the June term, 1845, of the circuit court of Hinds county. At this term, the defendant there, the administrator of the maker of the note, filed the plea of non-assumpsit on the part of his intestate. The record next discloses, that at the November term, 1846, the circuit court “ordered the judgment in this case' at the last term of the court to be entered now as for then, in the words, cause the parties, and thereupon cause a jury, to wit, &c., who being duly elected, &c., find for the plaintiff, and assess his damages, &c., and it is therefore considered, &c., that the plaintiffs recover, &c.”

The first objection made in this cottrt is to the entry of the foregoing judgment.

It does not appear that the administrator made any objection at the time this judgment was ordered to be entered, and no bill of exceptions is filed thereto by him. But, with the exception of the order itself, as recited by the clerk, there is nothing in the record that shows that a verdict bad been rendered in the casé at a previous term of the court. Even a bill of exceptions filed at the same term, although it speaks of trial, does not contain evidence that the trial proceeded to a verdict of a jury. There is no doubt that had a verdict been had at a previous term, and for some reason judgment had not been entered thereon, it would have been competent for the court to have given, at a subsequent term, following the rules of law in such cases, the appropriate judgment, in the form of a judgment nunc pro tunc. The circumstance, that no objection or bill of exceptions was taken to the rendition of this judgment, can weigh nothing against the administrator. If the record should have shown a verdict 'at a prior term, whereon to base the judgment nunc pro tunc, and none such legitimately appears, it is equally erroneous as if a judgment were rendered, in due course, as if upon a verdict where no verdict had in fact been had. Now the verdict of a jury in a case like this, is one step preliminary to a judgment so essential, that it must appear in a record to make that record complete. It is not incumbent upon a party to establish it or disprove it, by means of a bill of exceptions, and it hence follows, that either the record in this case is imperfect, or that no such ■verdict was had. The statement of the clerk, or of the court, at a subsequent term, of what transpired at a previous term, amounts only to parol proof, and is insufficient. There is a rule, that a judgment of a court will be presumed to be correct until the contrary is shown ; but incorrectness may appear from apparent defects in the proceedings as well as from errors in point of law. In this instance, there is no legal evidence of a verdict of a jury at a prior term, upon which to have established the judgment nunc pro tunc. '

The next point is as to the competency of Edwards, who was offered as a witness, by the administrator, to prove a mistake in drawing the amount of the note, and to prove full payment of the note. This bill of exceptions was filed at the November term, 1846, although it shows that the exception to the ruling of the court, excluding the witness, was taken at the time of this exclusion. The bill of exceptions is therefore irregular.

As to the matter of proving payment by this witness, in view of another trial, the state of the pleadings would warrant it in this case, at least, because the defendant was sued in his capacity of administrator, and was not bound, under the statute, to plead specially the plea of payment.

The objection to the competency of this witness in the circuit court, was put upon the ground that the note having been indorsed payable to bearer, had passed, in the course of business, through his hands. As to this, if the witness is not interested, or liable to other objection, he was competent to show the discharge of the note by its payment. Williams et al. v. Miller, 10 S. & M. 142.

The ground taken, that the note was void because its maker had been decided to be incompetent to make a will of an older date than the note by reason of insanity is not tenable. The insanity might have been temporary; and besides, the evidence offered was not legitimate to the case.

The judgment must be reversed, and new trial granted.  