
    Wilson M. Aldridge vs. Tobias J. Grider, use of Samuel Moore.
    To an action of assumpsit the defendant pleaded two defective pleas, to both of which the plaintiff replied; to the replication to one the defendant demurred, and the demurrer was overruled; no rejoinder was filed to - the replication to the other; the circuit court struck out both pleas, and the proceedings thereon, and ordered the plea of non-assumpsit to be substituted in their stead; this was done, neither party objected, and the cause "was tried and a verdict found for plaintiff: Held, that the action of the circuit court was within its powers of amendment as established by the statute (Hutch. Co. 854, § 21); but if it had transcended them, the defendant, not having excepted at the time, could not afterwards object in this court.
    In error from the circuit court of Carroll county; Hon. Hugh R. Miller, judge.
    Tobias G. Grider, for the case of Samuel Moore, sued Wilson M. Aldridge, in an action of assumpsit on a promissory note for eigh'ty'-five5dollars. The defendant pleaded two special pleas of failure of consideration. In substance, 1st. That the horse for 'Which the "’note-Was given was unsound at the time of the sale thereof, and that the unsoundness was fraudulently concealed by the plaintiff, who represented the horse as sound; 2d. That ‘the horse was unsound and unfit for service; that afterwards, and when the unsoundness was ascertained, plaintiff and defendant compromised the matter, when it was agreed between them that defendant should keep the horse and sell him for plaintiff, and account to him for proceeds, and that plaintiff would pay defendant for keeping the horse; and defendant avers that the horse died on his hands before sale. To the first plea plaintiff replied by denying failure of consideration, and avers that the original amount agreed to be given for the horse by defendant was ninety dollars; that afterward defendant alleged that the horse was unsound, upon which they compromised by reducing the price to eighty-five dollars, upon which compromise the note sued on was given. To this replication the defendant demurred generally, and the demurrer was overruled. To the second plea the plaintiff replied, denying the allegations of the plea, and stating the compromise as above. This replication was neither demurred to nor rejoined to. The court struck out both of the special pleas and the replications thereto, and gave the defendant leave to plead' non-assumpsit; that plea was not filed. A trial was had, and verdict rendered for the plaintiff for the amount of the note, and the defendant sued out this writ of error.
    
      George, for plaintiff in error,
    Cited 1 Chit. PI. 656, and commented on the act, Hutch. Code, 854, and insisted that the court had transcended its powers in striking out the pleas.
    
      Shelton, for defendant in error,
    Contended that the pleas were equivalent to the general issue, and it was therefore, independent of the act of 1840, in the power of the court to strike them out and substitu issue; but under that act the power was clear, wíefgj! PI. 497, 498; Com. Dig. Tit. Plead. E. 14; f'alk. Rep. 23^ 233; 1 Chit. PI. 498; 2 Day, 431; 2 How. 209; 7 lb. 730.
   Mr. Justice Smith

delivered the opinion of the^urt.

This was an action of assumpsit brought on a nou^raae by plaintiff in error. In bar of the action two special pleas were filed, to each of which plaintiff below replied. The replication to the first was demurred to and the demurrer overruled. The replication to the second plea appears from the record to have been unanswered.

The first error assigned is to the decision overruling the demurrer to the replication to the first plea.

The replication was defective, but the demurrer should have been extended to the plea, which was equally obnoxious.

After the judgment on the demurrer, the court ordered both pleas to be stricken out, and the general issue to be substituted. To this proceeding neither party objected, but it is now made a ground of exception. Hence the question arises, whether the court, in thus ordering the pleas previously tendered by the defendant to be discarded, and the cause to be tried on the general issue, exceeded the just limits of its authority.

Both of the defendant’s pleas were exceptionable. The judge, therefore, was bound by the express direction of the statute, (Hutch! Dig. 854, § 21,) “To amend and perfect them, so that the merits of the controversy might be fairly put to the jury.” So far as the the grounds of defence were disclosed 'by the defendant’s pleas, it is obvious that they could have been made available, if true, under the general issue. Hence the record does not show that the authority of the court was erroneously exercised, by the substitution of a plea which did not put the merits of the controversy fairly to the jury. And the presumption applies on which, as a fixed rule, the proceedings of a court of competent jurisdiction are held to be correct, unless the contrary be shown.

Moreover, there is nothing in the record by which it appears that the defendant did not have the full benefit of every ground of defence which he had to the action of the plain tiff; and as he made no opposition to the order of the court, even if it were erroneous, he should not now be allowed to object.

Let the judgment be affirmed.  