
    GENERAL COURT,
    OCTOBER TERM, 1793.
    Alexander M‘Fadon’s Executor against Luther Martin.
    THIS was an action of debt on a bill obligatory, dated the 14th of January, 1782, for 110/. current money.
    At May term, 1789, the defendant pleaded, 1st. Payment to M'-Fadon; 2. That M'Fadon, on the 27th of September, 1781, gave his single bill to J. T. Chase and R. Ridgely, for 200/. and that on the 9th of March* 1782, they assigned the said bill to the defendant, and pleaded this bill, so assigned, as a discount in bar; 3. The defendant gave notice that, under this plea of payment, he means to give in evidence the said single bill and assignment, and to set off and discount the sam? against the plaintiff’s demand.
    Replication, as to the plea of payment, non-payment and issue; andas to the discount, general demurrer and joinder.
    
    Verdict for the plaintiff on the issue in fact, subject to the opinion of the court on the point saved, “ whether the defendant, on the plea of payment, could give in evidence the bill and assignment, either under the notice above mentioned, or independent of that notice.”
    At October term, 1790, (no decision having taken place on the point,) it was agreed between the parties, “ that all pleadings but the plea of payment, non-payment and issue should be struck out, and that the defendant have-leave to plead any other matter, and the plaintiff to reply, &c. and each party releases all errors to the, other.”
    At May term, 1791, the defendant pleaded (admitting the execution of the bill obligatory mentioned in the declaration) the single bill to J. T. Chase and R. Ridgely, and their assignment, as a discount in bar.
    Replication, setting forth the act of assembly passed in 1715, “ for rectifying the ill practice of attorneys of this province, and ascertaining fees to the attorney-general,” &c. and alleging that J. T. Chase and R. Ridgely, at the time of making the said single bill pleaded as a discount, were practising attorneys, &c. that the said J. T. Chase and R. Ridgely, so being practising attorneys, did take the single bill without endorsing on the back side thereof for what matter and how the same did become due, whereby, &c. by reason whereof the same is void and of no effect.
    Rejoinder, (at October term, 1791,) that the said y. T. Chase and R. Ridgely did not take the said single bill, without endorsing on the back side thereof for what matter,, or how the same did become due. Issue joined. (See the pleadings in 2 Harris’s Entries, 320, 321.)
    Verdict as to the first issue, that the defendant did not pay; and as to the second issue, “ that the said y. T. C. and R. R. did not endorse on the back side of the said writing, &c. in such manner and form as they ought,” &c.
    Motion in arrest of judgment, and the reason assigned-was, that the second issue was an immaterial issue, on which no judgment ought to be given for the plaintiff.
    At May term, 1793, on a motion for a repleader, the judgment was arrested and the verdict set aside. The • , , . issue was struck out and a repleader awarded. (2 Harr. Ent. 199.) The court said that the endorsement required by the act of assembly on bonds given to attorneys may be made after their execution at any time.
    The plaintiff thereupon replied to the defendant’s plea of discount, and in his replication set forth the act of assembly aforesaid, and alleged as before that J. T. Chase and R. Ridgely were practising attorneys, &c. and then say “ that they took the said bill obligatory without endorsing on the back side thereof, before the impetration of the original writ in this cause, or any time since, for what matter and how the same did become due,” &c.
    Rejoinder, that the said bill obligatory was taken for a good and valuable consideration, and on the back side of the same it is endorsed for what matter and how the same did become due. Demurrer to this rejoinder, and joinder in demurrer.
    At October term, 1793, the court gave judgment for the defendant on the demurrer.
    The plaintiff appealed to the court of appeals, in which court the cause was argued at June term, 1796.
    Pinkney, for the appellant.
    It is to be inquired whether the plaintiff’s replication alleges sufficient matter in bar to the discount pleaded by the defendant, and if it does, whether the rejoinder avoids the bar.
    The discount relied upon is a single bill, given by M^Fadon to two practising attorneys; and in order to destroy this discount, the plaintiff originally replied, “ that they took it without endorsing for what matter,” &c.
    The rejoinder to this replication denied “ that they 
      took it without endorsing,” See. and the parties were at issue on this fact.
    The general court were of opinion that this was an immaterial issue, because it tied up the endorsement to the time of the taking the single bill.
    The judgment being arrested upon this ground, and a repleader awarded, the plaintiff replied to the plea of discount, that J. T. C. and R. R. took the single bill without endorsing for what matter, &c. at any time before the impetration of the writ, or since. This replication denied the making of the endorsement, up to the time of filing the replication. The defendant (not meeting the replication, or answering it) alleges in his rejoinder, that it is now endorsed; i. e. at the time of filing the rejoinder, but does not allege that it was endorsed at any time before the filing of the replication; of course, the' replication stands admitted to be true, there being in the rejoinder no denial of any part of it.
    It appears to me, therefore, that there is no question for the court of appeals to determine, but whether it was sufficient to endorse the single bill in this case, not only after it was pleaded as a discount, but after the plaintiff had replied the non-endorsement, as rendering the bill void under the act of 1715, c. 48. s. 9.
    If this question be considered either upon the letter, spirit or policy of the act of 1715, it must be evident that the general court are wholly mistaken in their construction of it. They determined, that endorsement after the replication filed, gratified the act. We contend, that the endorsement ought to have been at the time of taking the bill, or before the bill was pleaded as a discount, or at any rate before the non-endorsement was replied, as rendering it a nullity. And if we are correct in either of these ideas, it will follow that the judgment must be reversed, and a new judgment given for the plaintiff, on the ground of his replication being undefended, and the defendant’s bar unsupported.
    
      The act says, (1715, c. 48. s. 9.) “ that all bills, bonds, . , or other specialties, taken by any attorney or other person practising the law in any of the aforesaid courts, or any bills, bonds, or other specialties, taken by any clerks, &c. from and after the end of this session of assembly, shall be endorsed on the back side thereof for what matter or how the same did become due} and for default thereof, all such bills, bonds and specialties shall be void.”
    To ascertain the true construction of this law, it is fair to argue from the acknowledged construction of another law in pari materia.
    
    The act of 1715, c. 46. has a clause relative to bills, bonds, &c. taken by sheriffs, and requires an endorsement of the account for which they should be passed; in default whereof such bills, bonds, &c. to be void.
    There is no doubt, that under this provision, (s. 13.) the endorsement must be made at the time of taking the hill, bond, &c. although the clause does not expressly say go. It was so admitted in the general court.
    The construction of the act of 1715, c. 46. once ascertained, unfolds the true import of the act of 1715, c. 48. for each law had the same object and the same policy, though applicable to a different description of persons.
    That these laws had exactly the same view, is evident; that they proposed the same end, cannot be denied; and it is hardly possible that, at the same session of assembly, different means could be intended to accomplish the same object.
    To suppose that it was designed to vacate a bond taken by a sheriff, if not immediately endorsed, and yet, that attorneys to be at liberty to save their bonds by an endorsement at any time, is to attribute to the legislature unjustifiable partiality, or capriciousness. It will be impracticable to discover any substantial ground of discrimination between the two cases. The mischief to be remedied was the same ; the expedient for preventing it is the same, i. e. endorsement; and if immediate endorsement was deemed necessary in one case, why should it be left without limit in the other ?
    In short, no argument drawn from a law in pari materia can be stronger than that which the act of 1715, c. 46. affords. Even if the language of c. 48. was more doubtful than it is, it would decide the question.
    But the act of 1715, c. 48. is sufficiently clear of itself. Its object was to devise an expedient-for disclosing the consideration of bonds given to attorneys, in order that illegal fees might not be covered by them. Vide preamble to s. 13. of act of 1715, c. 46.
    The expedient is a bad one, but the general court would make it no expedient at all.
    The general assembly prescribes “ that a bond, &c, taken by an attorney, shall be endorsed,” &c. and “ for default thereof shall be void.” There are no express words to limit the endorsement to the time of taking the bond, &c. but the inference is so strong that express words were not necessary. Unless the endorsement is limited to the time of taking the bond, &c. the words “ and for default thereof, all such bills, &c. shall be void,” will be rendered inoperative and nonsensical.
    If you do not adopt the time of taking the bond, as the time required for the endorsement, it will be impossible to fix upon any time when the bond shall be said to be void for want of the endorsement. Suppose an attorney keeps a bond not endorsed for ten years, is it void at the end of that period ? I see no reason for saying that it is, unless it became void originally on account of non-endorsement at the time of taking it; and if he may-keep it for 10 years without endorsement, he may keep it for ever unendorsed, and it never will be void, although it seems that he cannot actually recover on it until it be endorsed.
    If the general court are right, a bond given to an attorney never can be void for want of endorsement, for they allow him to make the endorsement at any time. In this case, the endorsement was made after the death of the party; they misconceive the law by not attending to its language. The law says the bond shall be void. The general court say it shall only be inoperative; the law vacates the instrument, and renders it incapable of effect. The general court merely suspend its effect until endorsement, and allow it to become operative by subsequent endorsement.
    By the act of assembly, if the want of endorsement is to have any influence at all, it is to nullify the bond. The general court admit it.has an influence, but they only allow it to suspend, not nullify the bond. Surely such a halfway construction is not warranted by the law itself.
    I would argue without fear of being answered satisfactorily, that the want of endorsement can have no influence at all if it be not to destroy, and totally invalidate the bond.
    The act of assembly does not speak of a suspension of the legal operation of the bond until endorsement, (which seems to be the idea of the general court,) but gives to the want of endorsement, a decisive and conclusive effect, i. e. to make the bond a nullity ; but this effect it never can have in any possible instance, unless the general court are mistaken.
    But the general court not only disregard the words, but the policy of the act. What disclosure of consideration is an endorsement, made privately, several years after the passage of the bond, likely to accomplish ? Can we suppose that the general assembly could have any such silly and childish expedient in their contemplation? Is it conceivable that they would have inserted in a law such a phantom of a check upon illegal practices ?
    An endorsement at the time might (in their opinion) be some restraint; but an endorsement made years afterwards, in a secret manner, by the obligee himself, could never haye occurred to them as likely to avail any thing. The object they had in view is plain, and the intended means of accomplishing that object appear unequivocally m the act of 1715, c. 46. The general court have defeated even these inadequate means, and wholly abolished every check. They have so decided as to overturn the policy of the act, (although it is a settled rule of construction, that a statute shall be so interpreted, as that it shall not be evaded,) and they have so decided as to prevent a bond given to an attorney from ever becoming void for the want of endorsement, although the act expressly declares that this, and this only, shall be the effect of a want of endorsement.
    If the legislature had meant to admit of a subsequent endorsement, they would certainly have limited some period within which it should be done, as in the case of acknowledging and recording deeds; or they would have said that “ the bond should have no operation until it was endorsed,” and not ás they have said, that for default of endorsement, the bond should be void.”
    Although I hold it to be undeniably clear, that the single bill in this case should have been endorsed at the time of taking it; yet it may be proper to examine the admissibility of an endorsement, after the plea of the discount, and the replication to that plea upon the admission that the foregoing remarks are not satisfactory.
    In this view it will, I presume, be granted that the single bill, when pleaded as a discount, was in law no discount, although (according to the opinion of the general court) it had a capacity to become so by a subse-quent endorsement; for even' upon this new idea that the attorney could endorse at any time, it is evident that until endorsement, the bill was not an evidence of .debt, or in any ¡shape obligatory. Although the act is so construed away as that it does not wholly vacate the bill for default of endorsement; yet it must be admitted that it requires endorsement as indispensable to its efficacy and that while unendorsed, it cannot operate upon, or bind, any person.
    It will follow, I imagine, that the plea of discount (when answered by the replication, the truth of which the rejoinder admits) was a plea in bar of what was at the time no bar at all, however susceptible it might be of being made so.
    The defendant, by his plea, insisted upon an instrument of writing as a proper and valid legal discount, which, beyond all controversy, was not so, because it wanted an essential solemnity to give it force and operation.
    Can the superinduction of this solemnity, after plea pleaded and replied to, make the plea good by relation, when it is certain that originally the plea contained no defence whatsoever?
    This is a different question from the main point; for although it be decided that subsequent endorsement is allowable, yet it will not follow that a plea of the bill before endorsement (while it was inefficacious) can be supported by an after endorsement. The defendant might, perhaps, have pleaded de novo after the endorsement, but he has not done so. He has relied upon his plea of discount filed, when the bill was not legally discountable, and when it was inoperative in point-of law. His rejoinder admits that his bar contained no defence, and goes to show that what is alleged in the bar, has become a good defence since the plea and replication. He ought to have withdrawn his plea, and pleaded again. The assignment to the defendant was not more necessary to sustain his discount, than the endorsement; and yet an assignment after plea pleaded, would not have maintained the plea, although he might perhaps have withdrawn that plea and filed another subsequent to the assignment.
    The pleadings in this cause will serve to show that the opinion of the general court on the main point is erroneous. The first replication put the issue upon endorsement at the time. This was decided by the jury for the plaintiff, and the verdict was set aside, because the issue was immaterial.
    The second replication denied endorsement at any time before the replication filed. Suppose the defendant had thought proper to demur, the general court must (unless they deserted their own principle) have determined the demurrer for the defendant; because, if the attorney can endorse when he pleases, (even after replication filed,) it is certainly of no consequence whether there is an endorsement at any time prior to the replication or not. Suppose the defendant had met the replication by his rejoinder, there would then have been another immaterial issue;' for, if endorsement after the replication filed was admissible, it was of no consequence to determine whether it was endorsed before or not; just as it was of no consequence to determine whether the bill was endorsed at the time of taking it, because it might have been endorsed afterwards.
    So that if the defendant had thought proper, there never could have been a determination of this cause, unless the plaintiff had replied “ that the bill never has been endorsed, and never will be endorsed.” An absurdity in pleading which never can take place where there is a just decision.
    Upon the whole, I am at a loss to discover upon what grounds the judgment of the general court can be countenanced. It appears to me to be so plainly erroneous, that it is, on that account, difficult to argue against it.
    Jenings, also for the appellant.
    The question is, whether the bond set up by the defendant was endorsed pursuant to the directions of the act of 1715. It appears on the record, that the suit was brought in 1787; (after M-Fadorüs death;) that the endorsement was made May 20th, 1793, so that there was no endorsement till Song after the death of the obligor, and the commencement of this suit. If this is sufficient endorsement, the act is a mere nullity, and can answer no beneficial purpose whatever. The act certainly intended that the endorsement should be made with the knowledge of the obligor, or it intended nothing at all. The legislature thought the restraint proper, to prevent attorneys from taking unjust and improper bonds; but how can there be any restraint in this respect, if the obligee is at liberty to make any endorsement he pleases, or when he pleases, without any knowledge of it communicated to the per-son who is to be affected, or even after his death, as in the present case.
    Statutes are to be construed for suppression of the mischief, and advancement of the remedy; but how the mischief is to be suppressed, or any remedy afforded to the obligor, by giving an unlimited power to the obligee, to make what secret endorsements he pleases, is difficulty or rather impossible, to comprehend. The act of assembly was made to prevent a mischief, but a power to endorse at any time, without the knowledge of the obligor, is not preventing any mischief. This would militate directly against the rule, that statutes made for the public good, shall be expounded in such manner that they may as far as possible attain their ends ; but no end can be attained that the act of assembly had in view, by such an unlimited power of endorsement. The act does not say when the endorsement is to be made j and when two constructions are contended for, the one that leads to absurdity can never be supported; this is a principle of logiCy as well as law. By our construction, the law has a reasonable effect; by theirs it has none at all, and is a mere dead letter. The replication in this suit is agreeable to the precedents in the provincial records, “ that he took the bond without endorsing,” &c. for I believe it was never before doubted, but that the endorsement ought to be made at the time of taking the bond, or, if made after-wards, that it must be with the concurrence of the obligor j in which case, the party should set forth this fact of an after concurrence in his rejoinder, that issue might be taken on it: there could be no such concurrence here, as the party was dead when the endorsement was made. If such a practice is allowed, bonds to sheriffs may have any accounts endorsed on them at any time, whether the obligor is living or dead, contrary to the manifest intent of the law in that respect.
    By 27" Hen. VIII. c. 16. bargains and sales are to be by writing indented. It does not say when the act of indenting is to take place; but the uniform construction has been, that it must be at the time when the deed was made ; and if the deed was to be indented at any subsequent time, without the consent of the party to be affected by it, it would be considered as a forgery. It is also considerable that the present is the case of executors ; they can know nothing of the truth or faleshood of an endorsement made after the death of their testator; and what a strange law must that be, which makes a bond void for want of endorsement, and at the same time gives the obligee a power of secretly endorsing what he pleases, and this even after the party’s death, so that the truth of it cannot be known ! I believe there was not a lawyer at the bar when the point was debated, who was not surprised at the court’s decision.
    Key, for the appellant.
    By a note which I took at the time the general court gave their opinion upon the demurrer to the rejoinder, the ground of the court’s opinion is stated to be this, “ that it is not necessary for a practising attorney to endorse his bonds or bills at the time of taking them. If it is endorsed when offered in evidence to the jury, it is sufficient.”
    .. We conceive the judgment of the general court ought to be reversed on two grounds :
    
      1. Because it is a rule in pleading, that every issue shall consist of one precise point, affirmed on one side and denied on the other. JDoct. Plac. 248. Co. Lift. 126.
    In this case the defendant has departed from the fact . . ,, , , , set up m our replication, viz. “ that the bill was not endorsed at any time before the impetration of the original writ, or since,” and has neither confessed, denied or avoided it; because he rejoins that the said bill is endorsed. It is obvious that there is no fact put in issue, because our replication and his rejoinder may both be true. Nothing affirmed on one side is denied on the other. W e tie up the time to the day of filing our replication, by saying it was not endorsed before the original writ issued, or at any time since ; that is, between the issuing the writ and the day of filing the replication. The defendant, in his rejoinder, says, “ it is endorsed.” Supposing the endorsement subsequent to our replication, and before his rejoinder, then both are true ; and he has put in issue a fact not affirmed by us, nor denied by him. If the act of 1715 does not make it necessary to be endorsed, then he should have demurred to our replication, and confessed the fact that it was not endorsed, and tried the law. But instead of that, the rejoinder does not deny the fact set up in our replication, but takes a new and distinct fact, “ that it is endorsed” and tenders an issue.
    Whoever makes the first fault in pleading, judgment shall be given against him. The defendant, therefore, having plead a distinct substantive fact, without denying our replication, has tendered an issue where none could exist, there being no fact affirmed by one side, and denied by the other; consequently, judgment must be given against him, unless our replication is faulty; and this leads me to the
    2d point. At what time the act of assembly requires the endorsement to be made.
    In my judgment the act of assembly intended the endorsement should be made at the time of taking the bond or bill, as best calculated to obviate the frauds which the legislature intended to guard against. But if a doubt arises on the law, whether a subsequent endorsement makes the bill valid, yet most certainly the law intended an endorsement before suit could be brought on the bill, or it be pleaded as discount in bar ; for until endorsed it is void. This bill was, therefore, pleaded in bar in discount at a time when it was void. The fact appears on the oyer in the record, that it was not endorsed when pleaded in discount, nor at the time when our replication was filed; of course it was a void "bill at that time, and, as such, could not defeat a good cause of action; ’ and if void at the time it was relied on as discount in bar, it can by no possibility be made good by an %x post'facto endorsement. If, then, the bill be void if not endorsed, our replication set up a fair fact to try the merits, viz. that it was not endorsed at any time before the replication was filed; which fact the defendant would not put in issue, but set up a different one.
    We conceive the law with us on both points, and that, our demurrer was proper:
    1. Because an issue was tendered upon a fact that was not affirmed and denied in the rejoinder, and which rejoinder neither confessed or denied the fact set up in the replication, and
    2. Because we consider the fact set up in our replication defeated the bill as pleaded in discount, viz. that it was not endorsed, &c.
    The law, in our opinion, making an endorsement necessary, either at the time of taking the bill, or before it is relied on as discount in bar; because until endorsed, it is void by the act of 1713 ; and so being void, it could be no discount in bar. Our demurrer to the rejoinder was not only proper, but could not be avoided on the state of the pleadings; because when the defendant tendered an issue in his rejoinder, had we joined issue, oiic of two things would have happened, that in truth there was no fact in issue, and a repleader would have been awarded; or if the fact had been in issue as stated and set up in the rejoinder, then the issue would have been immaterial, because the jury would have found this fact, that the note is endorsed, which would not put an end to the case. By demurring, we confessed the fact, but then we put in issue the law; that is, “ must not the endorsement of a bond or bill, taken by a practising attorney be endorsed at the time of taking it, or before suit can be sustained on it, or before it can be pleaded as a valid bill in discountand if so we support our demurrer.
    If we support our demurrer, the court of appeals will enter such judgment for the plaintiff as the case requires, reversing the opinion of the general court. Salk.
    
    Martin, (Attorney-General,) in proper person.
   The court of appeals reversed the judgment of the general court, and gave judgment for the appellant for his debt, damages and costs in the general court, and in the court of appeals.  