
    Davis, Appellant, v. Singleton’s Administrator.
    After one demurrer sustained to a plea and judgment of respondeat ouster, on a second plea, and demurrer sustained, the judgment should he quod recuperet. Under the judgment of respondeat ouster, if the defendant have any defence, he must plead it to the merits at his peril; whatever he may plead in pursuance of this judgment, the court will regard it as containing his entire defence, and if that fail him, he will not he permitted to answer further.
    APPEAL from the circuit court of Wilkinson county.
    This cause was tried at the May term of said court, 1836, before the Hon. James Walker.
    Winchester, for appellant.
    The record is, of a declaration upon a single bill, sealed by Farish, Smith and Singleton for 3000 dollars, dated October 1st, 1831, and payable three years after date. There are three counts, two on the bond, and one a money count.
    At the October term, 1835, defendant pleaded as a bar to the action, that the consideration of the bond was the sale of a house and 60 acres of land by Davis to Farish.. That Singleton and Smith executed the bond as securities for Farish; and that, as part of the same contract, and based upon the same consideration, there was an agreement between Davis and Farish, with the concurrence of Singleton and Smith, and as the condition upon which they signed the bond as securities for Farish, and for the purpose of affording them collateral indemnity for their securityship, that Davis should, within a reasonable time thereafter, execute the title for said house and land to Smith, to be held as an indemnity and security until the writing should be paid; and avers that Davis, knowing, assenting and concurring in the premises, neglected to convey to Smith for the object and trust aforesaid, and as he had promised with Farish and his securities, but on the contrary conveyed to Farish, who was in doubtful circumstances and afterwards died insolvent, whereby the condition and consideration, on which Singleton executed the bond, failed.
    Plaintiff demurred and assigned special causes, which demurrer was sustained, and respondeat ouster awarded.
    Defendant, at the same term, afterwards filed two pleas.
    First plea. That the consideration on which Singleton executed the bond, wholly failed in this; that the consideration was the promise and agreement of Davis with Farish, Smith and Singleton; 'that the legal title to a house and lot, which at the time of executing the bond Davis contracted to sell to Farish, should be made to Smith, in trust as indemnity to said Smith and Singleton for the joint and several liabilities to be incurred by them as sureties, with Farish to Davis in the bond for the payment of the price of said house and land, which Davis promised to convey to Smith; avers that Singleton, relying on said promise, and the concurrent performance thereof, and wholly in consideration thereof, executed the bond, but Davis did not so convey to Smith, but conveyed to Farish, who was in insolvent circumstances, which defendant is ready to verify.
    Second plea. That the agreement of Davis, with the concurrence of Farish, Smith and Singleton, that the title to the house and land should be made in trust to Smith, was a condition upon which the bond was delivered to the plaintiff as an escrow, which condition was never performed.
    
      Plaintiff again demurred to these two pleas, and his demurrer was sustained, and instead of judgment quod recuperet, the court again awarded respondeat ouster.
    
    At the April term, 1836, defendant produced two more pleas.
    1. A general plea, that the bond was obtained by fraud, covin, and misrepresentation.
    
      2. That plaintiff procured the signature of Singleton by fraudulently agreeing with defendant to convey to one C. P. Smith a certain house and lot of ground in trust, to indemnify said Singleton and Smith from all risk or loss, by reason of their signatures, which were made only as securities for Farish, and on the sole and only condition of said conveyance to be made by Davis as aforesaid; yet Davis always refused to convey to Smith, whereby the bond became void.
    Neither of these pleas were sworn to, and objections were made to their being filed on the ground that under a respondeat ouster, defendant was bound, to file issuable pleas; but the court required plaintiff to reply or demur. Plaintiff took issue on the first plea, and demurred to the second.
    The demurrer was sustained, and respondeat ouster awarded a third time.
    Defendant produced another plea. That the consideration of' the bond was, the agreement and undertaking of Davis to sell to Farish, the principal in the bond, a house and lot of ground, and to execute the title deed for the same within a reasonable time thereafter, to Smith, a co-obligor in said bond, in trust to indemnify himself and Singleton for executing the same as securities for Farish, and after said indemnity to the use of Farish’s wife; and avers, that Davis failed to execute said conveyance to Smith, as he had promised to do, but in violation of said promise,'conveyed to Farish, and Farish afterwards died, leaving his estate insolvent, wherefore defendant says the consideration, for which Singleton executed the bond, wholly failed.
    Plaintiff replied, that the bond was executed and delivered by Farish as principal, and Smith and Singleton as his securities, for and in consideration of said house and lot to Farish, and not for and in consideration of plaintiff’s agreement to execute the title deed to said Smith, in manner and form as is alleged by the defendant, and concluded to the country.
    Defendant demurred to this replication, and the court sustained the demurrer and overruled the replication, by which time plaintiff thought it necessary to appeal to another tribunal, for a remedy ¿gainst an infinity of delay.
    In all the defendant’s pleas it is averred, that all the counts in the declaration are for one and the same cause of action upon the bond, and this fact is admitted by the demurrer.
    1. The judgment upon sustaining the second demurrer to the two pleas filed under the respondeat ouster ought to have been in favor of the plaintiff for the amount of the debt due by the bond, with the interest thereon, and not judgment of respondeat ouster; and such is the judgment the high court of errors and appeals should now render, after reversing the judgment in the court below.
    Revised Code,p. 120, s. 66, reads as follows: “If the plaintiff in any suit or action shall demur to the plea of the defendant, and the demurrer be sustained on joinder and argument, the judgment of the court shall be respondeat ouster; but in such case the defendant shall be compelled to plead to the merits of the suit or action, and the plaintiff shall not thereby be delayed of his trial.”
    Here, by the express words of the statute, the leave to plead over is upon terms that defendant shall plead issuably, and so as not to delay trial.
    By the common law, respondeat ouster was awarded only upon demurrer to pleas in abatement, and when awarded defendant was never allowed to plead another plea in abatement in the same degree, because it would lead to infinity. 1 Bac. Abr. 26, Gwillim’s Ed.; 2 Saund. 41; 1 Tidd’s Practice, 589.
    The legislature understood this rule and provided against infinity of delay, when they extended the benefit of a respondeat ouster to pleas in bar, as well as pleas in abatement. Such statutes, made in derogation of the wise rules of the common law, ought to be jealously guarded and strictly construed.
    2. When leave is given to a defendant to plead upon terms of •filing an issuable plea, and so as not to delay trial, if he pleads a bad plea judgment will be given for plaintiff. So also if he pleads a bad plea along with a good plea, both shall be struck out and judgment will be given to the plaintiff. 1 Burr. 59; 2 Term Rep. 390; 7 Term Rep. 530; 3 Term Rep. 305; Johns. Rep.
    Here the plaintiff has not only pleaded bad pleas, but upon re-spondeat ouster awarded three times, the 'defendant has come forward each time to plead the same matter over and over again under different forms and shapes, which is sporting with the favor of the court, to the endless delay of the -plaintiff’s demands for justice.
    As the pleas of the defendant state that all the counts in the declaration are for one and the same cause of action, being upon the bond; and as the demurrer admits this fact, the judgment of this court will be final for the amount of the bond with interest, provided this court sustains the judgment of the court below in overruling the pleas of the defendant to which the first and second demurrer were put in.
    As to the first plea, it is contradictory; it is not single; it is redundant; it sets up a parol agreement collateral to the bond, as a condition to contradict and defeat the bond, and it also avers the failure to perform that parol agreement, as a part of the consideration, in bar to the action.
    As to the third and fourth pleas:
    The third is the same plea with the first, equally contradictory, double, and sets up what it alleges to be a part failure of the consideration, in bar to the action.
    The fourth pleads the delivery of the bond to the obligee as an escrow.
    But a bond can be delivered as an escrow only to a stranger. 1 Coke, 36, a; Bacon; Shepherd’s Touchstone; 3 Cruise’s Digest, tit. Deed, ch. 2, s. 58; 5 Cranch, 30.
    As to all the pleas, which set up the non-performance of the agreement to convey to Smith as a failure of consideration of the bond, if it is a failure of the consideration as to one of the obligors, it is a failure as to all, because it is a joint bond; and if Singleton and Smith are discharged, so also is Farish.
    As a plea of fraud, the fact pleaded as a fraud in procuring the bond, is the failure after the bond was given, to comply with the agreement or perform the whole consideration of the bond. Such a fact does not amount to fraud in procuring the bond, otherwise every contract would be originally void for fraud, wherever the party to a note, bond or other contract failed to perform his part or to fulfil all the terms and consideration of such contract.
    But I conceive it unnecessary to discuss the pleadings after the second demurrer, as the judgment should then have been for the plaintiff for the reasons and authorities first given. The court will the more readily do this, as they must see there is nothing in the defendant’s defence in any form or shape in which he can plead it.
    Boyd, for appellee.
    All the judgments on the demurrer to the pleas being in favor of the plaintiff, he cannbt assign for error the erroneous character of those judgments. Nor can the defendant be permitted to notice any thing to his prejudice in the previous pleadings or proceedings so long as the final judgment in his favor remains unreversed.
    In support of the demurrer to the replication to the last plea, reference is made to 1 Chitty’s PI. 655-6, edit, of 1837, showing that the conclusion in all cases of a traverse, introducing new affirmative matter, must be with a verification, except where a rule of court or statute directs otherwise.
    As to the nature, form and extent of the traverse, see 1 Chitty, 58S; Gould’s PI. 380. 382. 393.
    If, however, the demurrer to the replication was improperly sustained, still defendant will be entitled to judgment in his favor on the second plea. The demurrer to that was improperly sustained and should have been in our favor. The defence was a complete bar at law, and showed a total failure of the consideration between the original parties. It was no collateral or conditional agreement, nor was it a condition subsequent, but a direct original undertaking as stated in that plea, and it would be no answer to this view of the case, if the party who obtained the deed should be regarded as a trustee for defendant; because, although a trust may exist, it is one to be enforced by action, is only implied, and the benefit may never accrue, as the trust may never be established, or the trustee may have sold to innocent purchasers, without notice, and may be himself insolvent.
    The court will also notice that it is not assigned as error, that the second plea was filed after the award of respondeat ouster, and in violation of the terms to plead issuably. That objection is to the fourth and fifth pleas, &c.
    The demurrer, then ,• should have been overruled and a judgment final been given for defendant as at common law. Gould’s PL 476-7.
    The statute, p. 120, sec. 66, cannot be so construed as to allow the same judgment to be given whichever way the demurrer is •decided, although by favor the court, if requested, may give leave to amend.
    As to the pleas subsequent to the second, ft is perhaps immaterial to notice them. We will barely refer to a few cases, as to the rules in reference to the practice under an order to plead issuably.
    An issuable plea was one on which issue being joined, the judgment, at common law, would cover the whole case. 5 Term Rep. 152; 1 Burr. 59; 5 Taunt, 856. A general demurrer is an issuable plea. 1 Chitty’s PI. 505; 8 Term Rep. 71; 1 Tidd, 428. The rule only excludes dilatory pleas, or pleas in abatement. Cases above, and 3 Johns. Rep. 259; 1 East, 411, and cases cited. If the plea be issuable, though informal, the rule to plead issuably is not violated. 5 Term Rep. 152.
    It has been said that if one of two pleas filed under a rule to plead issuably be bad, the rule is violated and both pleas shall be held bad. This is not true in the general manner of the expression.
    By a good plea, when speaking in reference to this subject, is meant a plea in bar, and by a bad plea, a plea in abatement or a dilatory plea. The rule properly understood, then, imports nothing more than that, under leave to plead issuably, a defendant cannot plead a plea in bar and a plea in abatement, and if he do so, both shall be stricken out. 3 Johns. Rep. 259.
    If not filed under a rule to plead issuably, the plea in bar would remain good, and overrule the plea in abatement. But the introduction of the plea in abatement is as much a departure from the leave given to plead issuably, when connected with the plea in bar, as when offered by itself; for if they were both held to be proper, the plaintiff would be compelled to take issue in some way upon them; and should he demur to the plea in bar and sustain the demurrer, his writ might be abated by a judgment on the other plea.
    This is the whole meaning of the rule; it means nothing more than that the defendant shall in good faith plead to the merits, and if his plea is informal or insufficient, it is no violation of the permission and leave of the court. 5 Term Rep. 152.
    If a plea not issuable, or to the merits is tendered under a leave, the party may object to it, if he please, or he can sign judgment. 1 Tidd, 230. 429; 1 East, 411, and cases there cited.
    If the plea be issuable, though defective, he should have leave to strike it out, or set it aside, or demur; and if he demur, the matter is up for decision in the same way as other pleas are heard on demurrer. 1 Tidd, 429. 230; 5 Term Rep. 152; 1 East, 411.
    These rules have been established by courts where the leave to plead was merely ex gratia, and not directed by statute, as with us. Revised Code, s. 66, circuit court act.
    The court has no control of the matter, unless the defendant either refuses to plead, or offers such plea as puts him in contempt.
    Here nothing of the kind appears; the plaintiff made no objection to any of the pleas. In his assignment by way of error, he only objects to the abuse of the grace of the court below, by the defendant, in filing the pleas subsequent to the second and third pleas. Under the award of respondeat ouster the fourth and fifth pleas were filed, and as an issue in fact has been taken to one of them by the plaintiff, and an issue in fact tendered to the sixth plea, by him also, (which sixth plea connects itself for its origin directly with the fifth,) he has placed himself in an attitude which forbids all complaint on his part.
   Mr. Justice Pit ay

delivered the opinion of the court.

This is an appeal from the circuit court of the comity of Wilkinson.

The essential question to be considered in this case, is whether, after one judgment of respondeat ouster upon sustaining a demurrer to a plea in bar, a like judgment can properly be rendered on sustaining a demurrer to a second plea in bar, filed in pursuance of the first judgment?

We do not deem the fact of amendment material in this case, because it was made by consent unaccompanied with conditions, and did not relieve the party from the effect of the judgment; and we put aside the question of what would or would not constitute an issuable plea, according to the practice of the English courts, not believing it involved in this question.

The construction of our own statute is brought under adjudication, and we must look to that for the intention of the legislature.

This statute is imperative, that, upon sustaining a demurrer to a plea in bar, the judgment of the court shall be respondeat ouster; but in such’case the defendant shall be compelled to plead to the merits of the action; and he shall not thereby be delayed of his trial. Rev. Code, p. 120.

The provisions of the latter clause of the section were intended, it. is believed, to govern the future pleadings of the defendant; and, under the judgment of respondeat ouster, if he have any defence, he must plead it, at his peril, to the merits of the plaintiff’s action; for whatever he may plead in pursuance of this judgment, the court will regard it as containing his entire defence, and if that fail him he can have nothing further to answer.

This is deemed to be the sound construction of the statute, for to answer the merits of an action is to present whatever may be urged against a recovery; any other construction would lead to infinity of pleading, and a consequent interminable delay of justice.

We will apply this exposition of the statute to the present case. Under the first judgment of respondeat ouster the defendant filed his second and third pleas, which must be regarded as containing his entire defence to the merits of the plaintiff' ’s action.

The second plea averred a failure of consideration. The third averred that the bill single was delivered as an escrow.

To these two pleas, there was a demurrer for causes assigned, which was sustained in the court below, and we think correctly. Here, then, the entire defence to the merits of the plaintiff’s action has been determined by the court to be insufficient in law to prevent a recovery.

What then should be the judgment? Surely not respondeat ouster; for the court is already informed by the pleadings that the defendant has nothing further to answer to the action. The judgment then must be quod recuperet, for no other, consistent with the law and the facts, can be rendered.

The judgment, therefore, of the court below, on sustaining the demurrer to the second and third pleas of the defendant, must be •reversed, the pleadings subsequent to the joinder in demurrer to those pleas with the judgment and proceedings thereon must be stricken out, and judgment of quod recuperet entered for the plaintiff.  