
    William Wright vs. John D. Alexander.
    Where a plea is filed at a term of the court subsequent to that at which the process is returned served on the defendants, and the record does not show that this plea is filed by leave of the court, the plea will be so radically defective that it may be disregarded by the plaintiff; nor will it make any difference if the plea recite, in the body of it, that it was filed “ by leave of the court; ” the record must show the permission affirmatively; if therefore a verdict be rendered, and such a plea be undisposed of in the record, and it does not appear by the record that it was filed by leave,, it will not be error.
    It will not he good ground for a new trial on account of newly discovered evidence, that the defendant has discovered, since the trial, that he can prove, by a witness examined on the trial, the payment of the note sued on ; by due diligence the defendant could have obtained the knowledge before the trial, or by proper interrogation have established the fact at the trial.
    
      In error from the circuit court of Marshall county; Hon. Hugh R. Miller, judge.
    On the 17th day of February A. D. 1845, John D. Alexander sued William Wright in assumpsit, upon a note for ,$1450, dated February 2, 1842, and due one day after date, to the March term, 1845, of the court. The writ was executed on the 25th of February, 1845; at the September term, 1845, on the 4th day of September, the defendant plead non-assumpsit, with a bill of particulars, consisting of two items, one for $350, and the other for $750, both for services claimed to have been rendered the plaintiff before the date of the note sued on. The plaintiff joined issue on the plea.
    At the September term, 1845, on affidavit of the defendant, that the plaintiff was a non-resident, security for costs was required under the usual penalty. On the 13th of June, 1846, the security was given; on the 18th of the same month the cause was continued on the affidavit of the defendant, and a bill of discovery allowed the latter. In the record intermediate, the affidavit for a continuance and the order of continuance is a plea of payment entitled of the proper parties, dated June term, A. D. 1846, of the proper court, and which recites “ the said defendant for farther plea in this behalf, leave of the court first being had and obtained, sayeth actio non, because he says, that heretofore, to wit, before the commencement of this suit,” &c., he paid the debt sued for. The plea concluded with a verification and a prayer of judgment. The bill of particulars accompanying the plea, was for the same items attached to the plea of general issue, but the amounts were different, being for the sums of $700 and of $250. No replication appears of record to the plea; nor is it stated in the record that leave was given to file this plea.
    On the 16th of December, 1846, a trial was had, and a verdict rendered for the plaintiff for the full amount of the note and interest. A new trial was moved for and refused, and a bill of exceptions taken embodying the testimony ; from which it appears that Jesse Holland and Jesse Lewellen testified on the trial, and that a letter of the defendants to the plaintiff was read. It is not deemed necessary to set out the particulars of the proof. The affidavit of Wright for a new trial stated, that “since the trial of the cause he has discovered that he could have proved by Jesse Lewellen the acknowledgment by Alexander of the payment of the money received by the said Wright upon the Abram Roach debt to the said Alexander; that he was not aware before the trial nor during the trial, that the said fact could be proved by the said Lewellen. That since the last term of the court, he used exertion and inquiry to ascertain if he could prove the above stated facts; he visited Tennessee in part to ascertain whether he could prove it by any one there, and wholly failed to ascertain the fact that he could prove it by any one until since, as above stated.” Three of the jurymen also made affidavit that, had this fact been in proof, neither they or the other jurymen would have found for the plaintiff. Jesse Lewellen’s affidavit was also filed, stating that he could prove the fact as stated in Wright’s affidavit. Wright prosecutes this writ of error.
    
      H. W. Walter, for plaintiff in error.
    I. No replication was ever filed to the plea of June, 1846. This is error. Bozman v. Brown, 6 How. 349; 4 lb. 352; 5 S. & M. 254.
    2. It is contended, however, that we did make all our defence under the general issue, that we suffered no detriment, and that this court will look to the bill of exceptions, and disregard this technical defect of want of replication. This position is erroneous. The court cannot look beyond the pleadings, the defendant in error was out of court before judgment was rendered in his favor below, and the plaintiff in error might have signed judgment for want of a replication, notwithstanding a verdict against him. Counsel reviewed at length the following decisions, viz., Webster v. Tiernan, 4 How. 355; Bozman v. Brown, 6 lb. 349; 4 lb. 352; 4 S. & M. 175 ; 5 lb. 254; and insisted that the court should adhere to the decision referred to in 4 How. 355; that the want of a replication is a discontinuance, and would authorize the defendant below in claiming judgment, notwithstanding an adverse verdict.
    
      3. But our opponent contends, that the record does not show that this plea was filed at the June term, 1846. We submit that they are mistaken as to this point. This plea is found in its regular place in the record. The conclusion is, therefore, irresistible that it was filed at the June term, 1846, even if the record were silent as to the time of its filing. “We must presume that the court below overlooked the plea rather than that the record is false in embracing that plea.” Tomlinson et al. v. Hoyt, 1 S. & M. 515; Dickson v. Hoff's Adm'r., 3 How. 165.
    4. Because the clerk does not certify that the plea was filed at the time it purports to have been, is no objection. His certificate would be worthless. 1 How. 101; Harris v. Planters' Dank, 7 lb. 346; Maulding v. Rigby, 4 lb. 222.
    5. But it is insisted, that the record does not show that the plea was filed by leave of the court. We submit, 1st, that it was filed, “ leave of the court being first had and obtained therefor,” as shown upon its face; and, 2d, that the presumption of law is, that it was filed by leave of the court. Price v. Sinclair, 5 S. & M. 254. This case also decides, that if the plea was improperly filed at the trial term, it was the duty of plaintiif to move to strike it out.
    6. But counsel for defendant in error insist, that the decision of Price v. Sinclair goes too far, and that the court ought to review it. We respectfully submit, that the whole current of decisions heretofore made by this court, supports this case. It is clearly supported in principle by the cases before cited in 3 How. 165; 1 S. & M. 515. This court has decided in Tombigbee Railroad Company v. Bell, 4 S. & M. 685, that in the absence of a petition for writ of error in the record, it will be presumed that one was filed. Again, in Wells v. Woodley, 5 How. 484, it was held, that if a writ of error bond is found in the record, it will be presumed that it was properly approved. This presumption, too, is made in the teeth of the statute requiring the court or judge who grants the writ to approve the bond. This is certainly a far stronger case of presumption than the one at bar. This decision of Price v. Sinclair, 5 S. & M., 254, is also defensible on principle. We hold that it is right that the appellate court should presume, that steps taken in a caúselas appearing from the records, were properly taken with the sanction of the inferior court.
    I have looked into the record in the case of Price v. Sinclair, and find the plea appears at the issue term, without any indorsement whatever by the clerk. It simply appears in the record, without comment or remark. Yet this court held “ that the plea having been filed at the issue term, is presumed to have been so done with the leavé of the court first had and obtained.”
    The case at baT is stronger than the one just cited, for the plea in the case at bar is headed with a venue of June, 1846, and states in its body that it is filed with leave of the court.
    Watson, for defendant in error.
    1. On the merits of the case, no question can be made; the note, which was the foundation of the action, was given in February, 1842, when the proof shows that the oifsets relied upon by the defendant were for services rendered as early as the year 1840. The execution of the note is certainly prima fade evidence of an indebtedness to the amount for which the note calls at the time of its date, and no testimony was offered by the appellant, rebutting this presumption.
    2. The fact omitted to be proved by the witness Lewellen, as stated in his affidavit, would have been of no weight before the jury; but were this not so, the omission on the part of this witness, to state such fact, from inadvertence or otherwise, is not a sufficient ground for.a new trial. The appellant had upon the trial full privilege and opportunity to cross-examine the witness, and the reason shows upon its face a want of diligence; and without a showing of diligence, a new trial is not granted upon the ground of newly discovered evidence. Houston v. Smith, 2 S. & M. 597; Davis v. Presler, 5 lb. 459.
    3. The appellant in his own affidavit does not make out a case of merits, and the affidavits of the jurors were only offered in aid of the point made on the affidavit of Lewellen, and will be controlled consequently by the decisions above referred to.
    
      4. The ground mainly relied on for the reversal of the judgment in this case is, that there is a plea of payment in the record upon which issue was not taken, and of which no disposition was made. To this it is replied, that the fact is otherwise; the clerk, it is true, in making out the transcript, has copied a plea of payment, purporting to have been filed at the June term, 1846. It will be seen that this plea is introduced without a statement even, apart from the plea itself, that it .was filed in the case, and it does not appear to have been indorsed “ filed; ” and moreover, the pleadings in the cause had been made up at the previous term of the court, and consequently at the June term, 1846, the filing of an additional plea was a matter within the discretion of the court, and it does not appear from the records that this discretion was invoked. Under these circumstances it is insisted, that this plea, copied into the transcript, is no more a part of the record, than are the affidavits for continuances, which are also copied into it. Ross v. Garey, 7 How. 47; White v. Toncray, 9 Leigh, 347, 351.
    After suit brought, it is the right of the defendant to file such plea or pleas as he may think proper, and the “pleadings between the parties ” constitute part of the record; but when the pleadings have been made up, and the cause at issue continued in court, no additional plea can be filed by the defendant, but with the leave of court. 4 How. 142; 5 lb. 525. Counsel on this point cited and reviewed the following authorities: 3 How. 101, 105,117; 3 lb. 165,191; 5 lb. 518; 1 S. & M. 515 ; 6 How. 349; Price v. Sinclair, 5 S. & M. 254; O’Conley v. The City of Natchez, 1 lb. 31, 46; Saunders v. Mo?:se, 3 How. 102.
    5. The present case differs from all of the decided causes in this important particular: the defendant, after verdict against him, moved for a new trial, and his motion being overruled, he excepted to the judgment of the court, and set out in his bill of exceptions the grounds upon which his motion was predicated; and from the exception filed, it will be seen that no complaint was made on the score of the pleadings in the case. Now, it is a settled rule, that when a party submits a motion for a new trial, and states his whole case, including the evidence, that a new trial will not be granted, when it appears that the .party asking it has had a fair trial on the real merits of the case, and that justice has been done. 4 Leigh, .635; 1 S. <fc M. 22; 5 How. 495, 502 ; 7 lb. 328; 4 S. & M. 193.
    6. It is also submitted, that on the authority of the case of Miller v. Brooks, 4 S. & M. 175, the judgment of the court below should be affirmed.
    The plea on which the case was tried was not technically formal, but under this plea, and the bill of particulars filed with it, the defendant availed himself of every defence and offset on which he relies in his bill of exceptions to the judgment of the court refusing him a new trial; or on which he could rely, were the case again submitted to the jury; that the informality of the plea was cured by the verdict, by virtue of the statute of jeofails. 6 How. 278 ; 6 S. & M. 417; 7 lb. 49. It will be observed that the bill of particulars filed with the alleged plea of payment, is substantially the same with that on which the defendant went to trial, and that the same evidence would support both.
   Mr. Justice Thacher

delivered the opinion of the court.

This action was instituted in the circuit court of Marshall county; at its March term, 1845. At the September term following, being the issue term of the action, the defendant filed the plea of non-assumpsit with a bill of particulars in the nature of a set-off, amounting to $>1100. At the June term, 1846, the defendant filed a plea of payment, with a bill of particulars amounting to f950. This plea was unanswered by the plaintiff.

We have often held that a judgment is erroneous, when the record shows a legal and substantial plea unanswered and undisposed of by the opposite party. If such a state of case exists here, then the judgment must be reversed.

Was the plea of payment properly pleaded in point of time? It is insisted that this plea having been pleaded at a term subsequent to that at which the pleadings had been made up, the record should show an order of court that such indulgence had been granted by the discretion of the court. No such order exists in the record, but the plea contains the usual formula, that such leave had been permitted. Now this case differs materially from that of Price v. Sinclair, 5 S. & M. 254. There the plea of payment was filed at the issue term, but here it is filed at a term subsequent to the issue term; for the issue term, under the act of 1840, regulating practice in this respect, is the first term after the appearance term, at which all the parties defendant are in court, as we have held on this statute. If, then, a plea appears by the record to have been filed at a term at which pleading was permissible, without special order of court, and is unanswered, dr undisposed of, it is error, and we can require no statement in the record of a special order, when no special order is needed; but it is widely different when a plea is found in the record, pleaded to a term subsequent to the issue term, without such order, because these pleas not being permissible except by order of court, the order must appear, or the plea is so radically defective, that it may be disregarded, as having been improperly pleaded in point of time, as was intended in the case of Price v. Sinclair. See also O'Conley v. The President and Selectmen of the City of Natchez, 1 S. & M. 46.

In the affidavit made by the defendant in the circuit court accompanying his motion for a new trial, on the score of newly discovered evidence, he alleges that he could have proved by Jesse Lewellen, the payment to the plaintiff of the amount of the note sued upon, which fact he was not aware of before, or during, the trial. But Jesse Lewellin was a witness upon the trial, and was examined upon the subject of payment. If he omitted to tell all he knew, from inadvertence, or because he was not interrogated thereto, that would not be a good ground for a new trial. 2 S. & M. 597; 5 Ib. 459. The showing of diligence is not sufficient. If such evidence was material, ordinary diligence should have induced the defendant to inquire of the witness in respect to so material a point, while he was being examined upon the subject matter. Wilbor v. McGillicuddy, 3 Miller’s L. R. 382; Graham, N. T. 483.

Judgment affirmed.  