
    Brown v. Smith.
    The plaintiff demurred to the defendant’s plea; but before joinder or argument the defendant confessed the demurrer, and asked leave to amend the plea, which was granted by the court, and an amended plea filed, to which plaintiff also demurred; and the court sustained the demurrer and gave final judgment against the defendant; held, at common law, the court had the discretion to allow amendments of the plea before judgment oh the demurrer, and that discretion is not restrained by our statute. The allowance of the amendment of the first plea was not equivalent to a judgment of respondeos ouster, and the judgment final on the amended plea was therefore erroneous. It should have been respondeos ouster.
    
    Defendant plead in bar of recovery that the instrument sued on was given for two slaves to whom the plaintiff had no title, and no authority to sell; the plaintiff replied that at the time of the sale he gave possession of the slaves to defendant together with a bill of sale and a covenant of warranty, and that the defendant has been ever since and is now in the undisturbed and quiet possession and enjoyment of the same. Demurrer to the replication, which the court overruled: held it is a well settled rule, that if upon the sale of personal or real property, the vendee protects himself by a covenant of warranty, and is put in possession, he cannot defend himself against the payment of the purchase money without a previous eviction, unless there has been fraud.
    In cases of implied warranty, defective title may be set up before eviction, but this rule does not apply where there is an express warranty.
    IN error from the circuit court of Lafayette county.
    This was an action of debt brought in the circuit court for Lafayette county, at the November term, 1839, on two several bonds executed by the plaintiff in error in favor of the defendant in error, for the sums of five thousand, and fifteen thousand dollars, respectively. There were two pleas filed to the declaration. The first of them set out that the consideration of the bonds declared upon was the purchase of a number of negro slaves, who were delivered by the plaintiff below with a bill of sale containing warranty'of soundness, &c. That five of said slaves, valued at five thousand three hundred dollars, were afflicted with divers diseases at the time of the sale,'by means whereof they were rendered useless to the purchaser, and that in consequence whereof the consideration of the said bonds had wholly and entirely failed.
    
      Tbe second plea alledged that the consideration of the bonds declared upon was the purchase of a number of negro slaves, who were delivered by the plaintiff below at the time of executing said bonds; that two of said slaves, valued at fourteen hundred dollars, were not, at the time of the sale, the rightful property of the plaintiff, and that he had not then nor at any time since lawful power and authority to sell and convey the title to the said negro slaves; and that in consequence thereof, the consideration of the said bonds had wholly and entirely failed.
    To the first plea the plaintiff filed a demurrer, which the defendant confessed, and obtained leave of the court to amend his plea, but no formal jndgment was entered up. The plaintiff demurred likewise to the amended plea, and his demurrer was sustained.
    To the second plea the plaintiff put in a replication, setting up as matter in avoidance, that at the time of the sale he gave possession of the said two slaves together with a bill of sale with warranty of title thereto, and that the defendant has heen ever since, and is now in undisturbed possession and enjoyment of the same.
    To the replication the defendant demurred, which the court overruled. And on a view of the whole pleadings, the court gave a final judgment for the plaintiff.
    There was also a motion to set aside the judgment on the demurrer and for leave to plead to the merits, which was refused. From which judgments of the court a writ of error was prosecuted.
    W. G. Thompson, for plaintiff in error.
    The judgment of the court below on sustaining the demurrer to the amended plea, should have been respondeos ouster. The defendant did not preclude himself from the benefit of such a judgment by having already amended his plea after confessing the demurrer. The right to amend in such a case exists at common law. See 1 Bac. Abr. pages 193-4, of chapter on Amendments. The statute, which gives him the benefit of a judgment of respondeos ouster after a demurrer to his plea sustained, was meant to enlarge the privilege the defendant had at common law. And if so, the court could not properly consider amending his plea on confessing the demurrer to be the same, in effect, as answering over after demurrer sustained by the judgment of the court.
    In regard to the proceedings had upon the second plea, this court has decided that the judgment of respondeas ouster should be rendered upon demurrer sustained to a plea in bar. 2 Howard, Davis v. Singleton’s administrator. The plaintiff’s replication to the second plea is bad. The matter which it sets up in avoidance is not good in law for that effect; and the demurrer to it ought to have been sustained. But since the first defect is manifest in the plea, the judgment should have, been respondeas ouster. Such a construction as this can be sustained as being within the intention and the equity of the statute. The sole intention of the legislature, evidently, was to give to the defendant the broad and substantial benefit of putting in his entire defence after the over-ruling of his first plea. Otherwise we will be driven to the absurd conclusion that the legislature only designed to enlarge the privilege of the defendant on a nice distinction in the modes of pleading, which never was observed in all the rigor of the common law. For there a defective plea is treated alike, without the shadow of a difference, when it is demurred to by the plaintiff, and when the plaintiff’s defective replication is demurred to by the defendant.
    A construction, which accords plainly with the intention of the law-maker, is right, though it seems to be' contrary to the letter of the statute. Bac. Ab. 457. 1 Show. 491, 10 Rep, 101.
    A case, which comes within the mischief for which a remedy is provided, is said to be within the equity of the statute.
    An equitable construction of a statute, in some cases, may restrain, in others it may enlarge, and in others it may be contrary to the letter. Bac. Ab. 458-9, and the cases there cited; Com. Dig. Parliament, (R.) 10, 13,15. Yin. Ab. Statute (E) 6..
    G. S. Yerger, for defendants.
    ' As to the first plea as amended, it was clearly bad. Admitting that where there is a warranty of soundness of slaves sold, and some of them are unsound, it is a good defence — it cannot be pleaded as a full defence. The plea in this case purports to answer the whole declaration, and yet it is only an answer to part. The plea is manifestly bad. 1 Meigs’ Rep. SO; 6 John. Rep. 63; 1 Ch. Pleading, 454. Plea is bad on the merits; it does not allege fraud. Thornton v. Wyn, 12 Wheaton, 183. Covenants are independent.
    The first plea being clearly bad, the question is, what judgment should be rendered on it? By the common law, the judgment would be “quod recuperet.” The statute of the state, Rev. Code, 120,'alters this, and says, if the demurrer to the plea of the defendant be sustained, the judgment shall be “ respondeas ouster,” and in such case defendant shall be compelled to plead to the merits, &c.
    If demurrer is sustained, the defendant must plead at his peril. Upon the argument of the second demurrer the judgment will be “quod recuperet.'’, 2 Howard, 674.
    In this case there was no formal judgment on the demurrer to the first plea. Had there been, no doubt could be entertained.— The court, instead of entering up a formal judgment when the demurrer was confessed, as it ought to have done, merely says, the defendant, having confessed, &c. leave is given to amend, &c. This is a mere informality, and amounts to precisely the same thing as if it had been in due form, &c. to plead over. If it had been entered regularly, it would have been, “ defendant having confessed the demurrer, &c. of the plaintiff, and the court being of opinion that the demurrer is well taken, it is considered by the court that the same be sustained, and that he plead de novo, or plead over.”
    The entry on the record is in substance the same: it gives him the liberty to amend, i. e., plead over, or better his pleading.
    The confession of the demurrer merely admits that it is well taken. The judgment of the court upon a party admitting that it is well taken, or when the court by its own judgment thinks it is well taken, must necessarily be the same, i. e., “ respondeas ouster,” or plea in abatement at common law, and in pleas in bar under our statute.
    g. The demurrer to the replication was properly overruled.— The replication was good. See Cowen v. Silliman, 4 Dev. Rep. 46; 1 Hawk’s, 410; 1 Blackford, 101. No action could be maintained on the warranty until dispossession; and surely, if no action could be maintained, it is not a good defence.
    The second plea avers he sold and had no title, as to two. The law implies a warranty of title only where there is no express warranty or covenant. Where there is an express warranty, it does away all implied ones. 2 Caines’] Rep. 193. 11 John Rep. 123. 1 Murphy, 138. Noke v. James, Cro. Eliz. 574. M. & Yerger’s Rep. 60.
    The replication shews there was a written and express warranty as to the title, whether it was a general or special warranty makes no difference, because it is express, and it avers possession delivered, &c. This is clearly good, according to authorities cited.
    But even if there was no express warranty, the implied warranty would not be broken without dispossession. See authorities cited in my brief on this point.
    The demurrer to the replication was properly overruled, and judgment was correctly entered for plaintiff, because the statute does not apply to replication.
    The application for a continuance, and the application to amend were'properly refused. The continuance was asked because of the absence of witnesses when there was no issue of fact — but the case stood upon demurrer. The application to amend was properly overruled, for the reasons before given, and for the following reasons: 1st. Because the party did not state or show in what he would amend, that the court might judge of the materiality of the amendment. 2d. Because it has frequently been decided by this court that refusal to amend, or to continue, are matters in the discretion of the court, and for which no writ of error will lie. Babcock v. Scott, 1 Howard, 100. Newman v. Foster’s heirs, 3 Howard, 383, and other cases decided at the present term.
    The last error assigned is, that the cause was improperly tried at May term, 1840. The facts were, the writ was returnable to the November term, 1839, at which term the pleadings were made up; but said term was not held by the' judge, and there was a failure. In February, 1840, the legislature passed the act hereinafter referred to, to make the return term, merely an appearance term, &c. and it is contended that as the November term, 1839, was not held by the judge, the May term was in fact the appearance term, and the cause did not stand regularly for trial until the next term thereafter.
    Admitting this to be true, that May term was the return term, yet the act, sec. 2, page 133, expressly says: all demurrers, pleas, &c. not requiring the action of a jury shall be disposed of at the return term, &c.
    3. The motion to set aside the judgment on the demurrers with leave to plead to the merits, is answered above. It was simply an application to the court to be permitted to amend by pleading to the merits, (which had already been pleaded to) and which the court refused. This was matter of discretion as has frequently been decided by this court. Nor did he show or exhibit his plea that court might judge whether it was a plea to merits. At common law such an immaterial defect, in form, as to the entry of the judgment would be amendable. 2- Archboid, 276. That which may be amended in a merely informal part is considered an error as amended. 4 John. Rep. 506. 2 Archbold, 265.
    The first plea in bar, demurred to, is like a plea in abatement, and cannot be amended so as to produce the same judgment. 2 Archbold, 271.
    A. M. Clayton on the same side.
    Upon argument of the demurrer to the first plea, the counsel of the defendant became convinced that the plea was defective, and asked leave to amend, which was granted. A second plea was filed — and a second demurrer. Upon argument had the second demur was sustained. Leave was asked to amend the pleadings again, which was objected to. The court sustained the objection, and refused to grant another amendment. This was upon the strength of the principle laid down in Davis vs, Singleton’s administrators, 2 Howard 673 — that after one demurrer sustained, an amendment, and a second demurrer, the judgment is quod recuperet. The counsel for the defendant endeavor to distinguish between the two cases, and say that a confession of a demurrer is not the same thing as a judgment of the court upon it. The distinction cannot be sustained. The principle of the decision is to prevent the repeated exhibition of defective pleas, and to lay down the rule that a party can amend but once. If that be the correct principle, the judgment of the court was right. Besides, the allowance or disallowance of amendments is a mat, ter within the sound discretion of the court, and not therefore ground for error. Green vs. Robison, 3 Howard 105. Even if the court erred in refusing permission to .amend a second time, this court will not on that ground reverse the decision. This brings up the question whether the demurrer to the second plea was rightly sustained. A bare inspection of the plea will sliow that it was bad. It purports to answer the whole declaration, but, in its utmost latitude, is an answer only to part. Upon one of the most trite rules of pleading it was defective, and fatally so upon demurrer. See Reed vs. Moore, 1 Meigs 80. Gould’s PL: c. 6, Sec. 98. 1 Ch.: PL: 510. 6 Johns. 63.
    The only remaining part of the case relates to the demurrer of the defendant to the plaintiff’s replication to the second plea.— Of course the demurrer reaches back to the plea itself: — that plea is defective because it answers only part of the declaration, although assuming to answer the whole.
    The replication too was beyond doubt a good answer to the plea. The plea averred that the plaintiff had no title to one of the negroes sold to defendant, and that he had covenanted to warrant the title. The replication answered that defendant had always enjoyed quiet possession of the slave, and that there was no adverse, outstanding title. This was sufficient. The defendant has his covenant in the bill of sale to rely on if the title should ever prove defective; but he cannot prospectively prevent the plaintiff’s recovery, whilst he is in the undisturbed possession of the property, upon a mere apprehension of failure of title. He could not sue upon the warranty in his bill of sale, until there was a breach of the covenant by eviction of possession — nor can he set up defence under a different state of circumstances. He has sustained no injury. These principles are so obvious as scarcely to need authority to support them. See, however, Kent vs. Welch, 7 Johns : 258. Vanderkarr vs. Same, 11 Johns: 122. Ferris vs. Harsher, Martin & Yerger, 48. And at all events the plea should have offered to return. the negro, the title to which was alleged to be defective. Thornton vs. Wymer, 12 Wheaton, 2 Kent, 480.
    
      After the demurrer to the replication was over-ruled, the defendant did not ask to be permitted to take issue upon the replication ; the court then could give no other judgment than a final one. No injury is done to the defendant in this, because if the title to that one negro should prove defective, he will always have his remedy upon the bill of sale against the now plaintiff, who is abundantly able to pay the damages.
    There seems to me therefore to be no error in the judgment of the court below, and that it should be affirmed.
   Mr. Justice TbotteR

delivered the opinion of the court:

Two questions are presented by the record in this case. First. Whether the judgment upon the second demurrer to the plea of the defendant was proper. And secondly. Whether the defendant’s demurrer to the replication of the plaintiff to the second plea was properly overruled.

1. The record shows, that to the first plea, there was a demurrer, and that the defendant simply confessed the same, and asked and obtained leave to amend the plea. There was no joinder nor argument, and no judgment save the permission given to amend. Was this equivalent to a judgment of respondeos ouster according to the act of the legislature? Rev. Code, p. ISO, sec. 66. If so, then according to the interpretation which has been given to the statute by this court, in the case of Davis v. Singleton’s Adm’r. 2 Howard, 674, the judgment of the court, on sustaining the second demurrer, was properly rendered for the debt and damages claimed in the declaration.

In order to decide this question it becomes necessary to consider whether the allowance of the amendment in this case, was a favor, which the defendant had a right to claim at common law,for if that be so, the legislature cannot be presumed to have intended to narrow or abridge the right. That the courts in England have uniformly allowed the pleader to amend, by correcting any mistake or fault, upon a timely application for that purpose, is evident from ail the authorities. So long as the proceedings are in paper, as it is technically termed, that is,' before the record is complete and ready to be sent to nisiprius for a trial of the issues in it, amendments are allowable at the discretion of the court. 1 Petersdorf Abr. 545. 2 Burr, 756. In one case, the defendant was permitted to amend his plea after he had joined in the demurrer, but before argument. Though as a general rule the courts will incline against the allowance of this indulgence, unless it is applied for so soon as the party has notice of his fault. And they will in no case grant it so as to delay the trial. 2 Tidd’s Pr. 742, ed. 6. Hence it is evident that the amendment in this case was allowed, not by virtue of the statute before recited, but in pursuance of the common law authority of the court. If this is not so, the effect of a contrary determination will be, to make the statute cut off this branch of the discretionary powers of .the courts, and confine them in all cases to the simple judgment of respondeas ouster; whether the defendant confesses his fault and throws himself upon the indulgence of the court, or perversely joins in the demurrer and sets the case down for argument on the demurrer. But this was not the intention of the statute. Its object was to remedy an inconvenience of the common law rule, which requires a final judgment for the debt and damages, if a plea in bar is held bad on demurrer. And the operation of the law would seem to be to place pleas in bar, in this respect, upon the footing of pleas in abatement. The court therefore erred as we conceive in giving final judgment against the defendant below upon sustaining the second demurrer to the first plea.

As this view of the case has the effect to reverse the judgment, it would perhaps appear unnecessary to decide the second question, arising on the demurrer to the replication to the second plea. But with a view to settle what must be one of the principal questions on the trial in the court below, we will consider the validity of the plea as well as the replication.

2. The second plea alledges a want of title in the plaintiff, to a part of the negroes which formed the consideration of the writing sued on. The replication states that the plaintiff at the time of the sale executed a bill of sale with warranty of title; that the defendant was then put in possession of the slaves, and ha^ been ever since and now is in the quiet possession of the same, without any molestation or disturbance. This replication furnishes a full answer to the claim of relief on the ground disclosed in the plea. It is well settled that if upon the sale of personal or real property, the vendee protects himself by covenants of warranty, and is let into possession, he cannot defend himself against the payment of the purchase money without a previous eviction, unless in cases where there has been fraud. 2 Kent’s Com. 471. Abbott v. Allen, 2 J. Ch. Rep. 519. 19 Martin’s Louis. Rep. 235. This was held to be the true rule in cases of the sale of lands, in several cases which have been decided by this court during the present term. And in general, the rules which apply to sales of real, apply also to those of personal estate. 2 Kent’s Com. 471. But'it is said that there is an implied warranty of title in cases of sales of personal property. This is true, where the vendor is in possession, at the time of the sale. But it is equally well settled, that an express warranty of title, destroys all presumptions of this sort. 11 John. Rep. 122. 2 Caine’s Rep. 192. And it is upon this distinction, that the case in 2 Marshall’s Rep. 218, and also that in 4 Bibb, 304, were decided. These cases were sales of personal property without any express warranty, and the court held in the first named case that an action would lie for a breach of tho implied warranty without an eviction. That the implied warranty was, that the vendor had a title at the .time of sale, and it was broken immediately, if he had no title. It is similar to a covenant of seisin in the vendor of lands. The court did right therefore in holding the replication to be good. But as the plea was clearly bad, in purporting to answer the whole declaration whilst in fact it answers only a part, the demurrer must be sustained to the defendant’s second plea, and judgment rendered that he answer over. See 1 Meigs’ Rep. 80. 6 John. Rep. 63.

The judgment must be reversed, and a judgment of respondeas ouster awarded.  