
    Jesse Haynes, President of the Board of Police of Clark County, vs. William Covington et al.
    To an action on a promissory note against four persons as makers thereof, two of the defendants plead that they were sureties of the principal debtor, and that the creditor in the note, after its maturity, had extended the time of payment for the space of six months, by agreement with the principal; held. that the plea was bad; that a mere indulgence by granting an extension of time, unless based upon a contract for a sufficient consideration, and without the assent of the sureties, did not release the sureties.
    Where a demurrer has been filed to a plea, it extends back to the declaration, provided that be defective in substance; it does not reach mere formal defects ; the rule being, that a demurrer filed for either party in any stage in the pleadings, relates back to the first substantial defect, and not to a mere formal one.
    A declaration on a promissory note by H., president of the board of police, against several defendants as makers, which in effect avers that H. was successor in office of V.; that the defendants, on a day named, made their note in writing, and delivered it to plaintiff, payable to V. and his successors in office, for an .amount and at a time named; yet the defendants had not paid the same to plaintiff, wherefore suit was brought; is substantially good.
    Where a demurrer to a plea is overruled in the court below, but on writ of error sustained by the high court of errors and appeals, and judgment of respondeat ouster awarded, it is competent for the court below to allow, if desired, an amendment of the insufficient plea.
    In error from the circuit court of Clark county; Hon. A. B. Dawson, judge.
    James M. Hand, president of the board of, police of Clark county, filed his declaration in the court below in these words :
    “ James M. Hand, president of the board of county police of Clark county, Mississippi, (successor in office to Peter Mitchell, late president thereof,) by attorney complains of James Vance, William Covington, Alexander Trotter and Robert Collins, being in custody, &c. of a plea of trespass on the case in assumpsit. For that whereas, the said defendants, heretofore, to wit, on the fourth day of April, A. D. one thousand eight hundred and forty, at, to wit, in the county aforesaid, made their certain note in writing, commonly called a promissory note, signed James Yance, W. Covington, Alexander Trotter, Robert Collins, bearing date the day and year last aforesaid ; and then and there delivered the said note to plaintiff, and thereby twelve months after the date thereof, jointly and severally promised to pay Peter Mitchell, president of the board of county police and his successors in office, five hundred and sixty-six dollars and ninety-five cents (written jfB) value received (written rec’d), it being for money loaned at ten per centum per annum interest.
    “ Yet the said defendants, although often requested, have not yet paid the said sum of money, or any part thereof to the said plaintiff, but to pay the same or any part thereof to the said plaintiff, have hitherto wholly refused, and still refuse, to the said plaintiff’s damage one thousand dollars, and therefore he brings his suit,”&e.
    Covington and Trotter appeared, and plead non assumpsit, and the following plea, to wit: “And the said defendants, William Covington and Alexander Trotter, for a further plea to said declaration, say the plaintiff aforesaid, his action aforesaid ought not to have and maintain against them the said defendants ; because they say that they, the said defendants, were then and there only sureties of the said James Yance, on the said promissory note in the declaration mentioned; and that after-wards, to wit, on the second Monday of November, 1S43, one Jeconias P. Poole, being then and there president of said board of police, and successor in office to said payee of the promissory note, in the said declaration, did then and there, well knowing said defendants, William Covington and Alexander Trotter, to be only sureties as aforesaid, by agreement with said’ James Yance, give time and further day of payment to the said'James Yance, notwithstanding said note was then due and payable, to wit, the space of six months, and this they are ready to verify,” &c. To this plea there was a general* demurrer and. joinder, in short, by consent. The court below overruled the demurrer, and rendered judgment for these defendants, that they go hence, and recover their costs, &c.
    Upon overruling the demurrer, the counsel for the plaintiff (as appears by the bill of exception), “ asked leave of the court to file a replication to said plea, but refused to withdraw his demurrer thereto; ” which leave the court refused, and gave final judgment for the defendants.
    Jesse Haynes, successor in office of the plaintiff (Hand) in the above suit, prosecutes this writ of error.
    
      George Calhoon, for plaintiff in error.
    1. The second plea of the defendants was not a good one. Newell if Pierce v. Hamer et al. 4 How. 684. In that case, the language of the court is, that to discharge the surety by indulgence to the principal, “ there must be a positive and binding agreement; and for this purpose it must be based upon some new and valuable consideration, which is sufficient to tie up the creditor, and prevent him from asserting any remedy during the time for which the indulgence has been given.” There is no averment in this plea, that the agreement to give the time of six months, was upon a valuable consideration. In setting up contracts not under seal, a consideration must be averred.
    2. It may possibly be contended, that the declaration is defective. Were that admitted, still the judgment is erroneous; for in that case, the demurrer should not have been overruled to the plea, but sustained to the declaration, in which event the complainant would have had the right to amend. But under the present judgment, he is deprived of this right altogether. Such a principle would be as subversive of justice as it is contrary to the rules of pleading.
    3. But I think the declaration is good. The only objection that could be made to it is, that there is no averment in it that the money was not paid to the plaintiff’s predecessor. In case of an assigned note, it probably would be necessary to aver that the money was not paid to the plaintiff or his assignor before notice of the. assignment. But the case is different in this case. Here an officer of the government sues ; the office is in fact the creditor, if I may so speak, and the plaintiff, and when it is averred that the money was not paid to the plaintiff, this averment ought to be understood as denying payment to any one filling the office. When a suit is brought in the name of the governor of the state, on a bond given to his predecessor, it is not necessary, 1 apprehend, to aver nonpayment to the predecessor. But,
    4. Be this as it may, the nonpayment of the money was confessed by the plea, which was a waiver of this defect, if indeed it was a defect in the declaration. For it would be absurd to complain that the plaintiff did not aver a failure to pay to the predecessor, when this is confessed by the defendant.
    
      J. Heyfron, for defendants in error.
    1. The demurrer being only general, the question, raised on the special plea thereby is, under the statute H. & H. p. 615, sec. 6,) was there an omission so essential therein, that judgment according to law, and the very right of the case, could not be given 1 The defect in the plea is said to be, that it omits to aver a consideration for the agreement, by which the time of payment was extended. But this is not a more essential omission, than that in the plea in the case of Ray et al. v. Woolf oik, 1 S. & M. 523, which was holden by this court good on a general démurrer.
    2. But supposing the plea bad on general demurrer, the declaration which contains but one- count is defective, and therefore the judgment is correct. 1 How. 115.
    1st. It does not appear thereby, that the payee ever had possession of the note, no delivery being averred.
    2d. It does not appear thereby, that the note sued on was not paid to the payee, and consequently no breach of contract is shown, or right of action in plaintiff.
    3. It is also contended, that admitting such a defect in the declaration as would be reached by general demurrer, still the judgment is erroneous, because the demurrer should not have been overruled to the plea, but sustained to the declaration. The question raised by the demurrer was, who was entitled to judgment on the whole record, all defects therein being cured which must be reached by special demurrer, the demurrer being equally as searching to the declaration as to the plea I Now if the plea was good, or declaration bad on general demurrer, the judgment must be in onr favor; for in one case we made a good defence, which was confessed by the demurrer, and in the other, plaintiff did not show a cause of action. And in either event, the judgment must have been that he take nothing by his writ, and that we go hence without day, which was the judgment pronounced.
   Mr. Justice Thacher

delivered the opinion of the court.

Hand, president of the board of police of Clark county, and the successor in office of Mitchell, instituted an action of assumpsit against Yance, Covington, Trotter and Collins, makers of a promissory note, payable to Mitchell, in his capacity of president aforesaid. The declaration avers a delivery of the note to the plaintiff, and the breach alleges its nonpayment to him. Covington and Trotter pleaded non assumpsit, and a special plea setting up the defence that they were but the sureties, of the principal debtor, and that the creditor in the note, after its maturity, had extended the time of payment for the space of six months. A general demurrer was filed to this plea, which was overruled in the court below.

It has been heretofore determined by this court, that a creditor has not the power to enlarge the time of payment by his principal debtor, upon a contract in which that debtor has sureties, unless upon certain conditions. Newell & Pierce v. Hamer et al. 4 How.; Wadlington v. Gary, 7 S. & M. 522. The plea in this case only sets up the defence of mere indulgence by granting an extension of time to the principal. Such an act alone will not release sureties. The plea does not allege a valid agreement for indulgence, based upon a sufficient consideration, and made without the assent of the sureties, which are essential to the perfection of the defence attempted. The plea, in this case, is substantially defective, and differs from that in Ray et al. v. Woolfolk, use, &c. 1 S. & M. 523, where the plea was good in substance, but informally pleaded. The demurrer should, therefore, have been sustained.

But it is also insisted that, since a demurrer, in whatever stage of the proceedings it is taken, reaches back, in its effect, through the whole record, and the declaration in this case being bad, the judgment should nevertheless be for the defendants. It is true that where the parties join in a demurrer, upon any one particular point, in any stage of the pleadings, judgment must be given upon the whole record, but this has relation to the first substantial fault in the pleadings, and not to a mere formal defect. The reason for this restriction is, that defects in substance are not aided by the adverse party’s pleading over, as is the case in formal defects. Gould’s Pleading, 474. Now in this case, the declaration shows sufficiently that the plaintiff has a cause of action, and is consequently substantially good.

The judgment must be reversed, and the demurrer directed to be sustained with judgment of respondeat ouster, under which, leave to amend the plea, if desired, can be had in the court below, to which the cause is remanded.  