
    George W. Shields vs. John M. Taylor et al.
    To an action on a bill of exchange, the defendant plead that he had been sued by the plaintiff in the circuit court of the United States in the same cause of action, and obtained a judgment in his favor, by which he was discharged from all liability on the demand sued on : Held, on demurrer to the plea, that it was,a good bar to the action.
    Since the act of 1840, regulating the practice in the circuit courts, amendments which were formerly in the discretion of the court, are now matters of duty ; and it will be error to refuse to allow them, when applied for at the proper time.
    Judgments on demurrers are under the statute,. (How & Hutch. Dig. 619, § 9,) not final until the end of the term, until which time they may, on proper showing, be set aside.
    To an action on a bill of exchange, the defendant plead a former recovery in his behalf, in an action on the same bill in another court; the plaintiff demurred ; and the plea was adjudged good, and judgment entered for defendant ; two days afterwards the plaintiff entered a motion to set the judgment aside, and for leave to reply to the plea; the motion was continued to the next term, when the plaintiff’s counsel read a transcript of the record of the former judgment with his affidavit, that he did not consider it a bar to the action ; the court refused to set the judgment on the demurrer aside, and the plaintiff excepted ; held, that the plaintiff should have been allowed to reply to the plea, and it was error to refuse it.
    
      Lang v. Fatheree, 7 S. & M. 404', explained; the proper judgment when a demurrer is overruled is final, unless the demurrant crave leave to reply, in which case leave should be given.
    In error from the circuit court of Hinds county ; Hon. George Coalter, judge.
    
      George W. Shields sued John M. Taylor and Collin S. Tarpley, in an action of assumpsit, on the following instrument, to wit:—
    “ Messrs. Taylor & Tarpley, Gent.: — Please pay to the order of Messrs. G. W. Tyson & Co., one thousand dollars, when collected from the paper in your hands of J. M. Towns & Co., and much oblige, Yours, &c.
    “ David J. Tyson,
    “ Per G. W. Tyson, attorney.
    “Indorsed by G. W. Shields,
    “ G. W. Tyson & Co.”
    The- declaration contained six counts, five of them special counts, and one common count.
    The two first counts describe the instrument as a foreign and an inland bill of exchange; the third, fourth, and fifth counts, describe it as an instrument for the payment of money indorsed to plaintiff.
    To the first five counts, the defendants demurred, and plead non-assumpsit to the rest. The demurrer of defendants was overruled, and judgment of respondeat ouster rendered. Defendants then pleaded non-assumpsit, and a special plea, alleging, that an action was instituted on the same cause of action by plaintiff against defendants, in the circuit court of the United States, for the southern district of Mississippi, and such proceedings were had thereon, that defendants were discharged from the performance of the promise set up by plaintiff.
    To the last plea the plaintiff demurred, and at the April term, 1846, on the 6th of May, the demurrer of plaintiff was overruled, and judgment rendered that “defendants go hence with costs.”'
    At the same term, a motion was fnade by plaintiff to set aside the judgment and for leave to reply, which motion was continued to the November term, 1846, and at that term was overruled, and a bill of exceptions filed to the judgment of the court overruling the motion.
    The bill of exceptions sets forth the evidence on which the motion was based, viz.: the affidavit of plaintiff’s counsel, that a transcript of the record in the United States circuit court, which he produced, was a transcript of the judgment on which the plea of defendants was founded, and that he did not believe that said record constituted a bar to the action; the record itself was also read to the court,- and is set out in the bill of exceptions, and shows that the judgment was given on demurrer to the declaration.
    The plaintiff below sued out this writ of error.
    
      D. Shelton and W. C. Smedes, for plaintiff in error, contended,
    1. That the court below erroneously decided, when it gave judgment for defendants on overruling the demurrer of the plaintiff to defendants’ plea. The judgment should have been respondeos ouster. See Smedes’s Digest, Tit. Judgment, § 72, 134; Lang v. F'otheree, 7 S. & M. 404; and especially Heyfron v. Miss. Union Bank, 7 lb. 434; 1 lb. 540.
    2. The court below ought to have allowed the amendment asked, and permitted a replication to the plea of the defendant. It was a denial of justice to refuse it. Wharton v. Porter, 10 S. & M. 305; Acts of 1840, ch. 74, § 3; Peyton v. Minor, 11 S. & M. 148.
    3. The record accompanying the affidavit and application of plaintiff to reply, shows that the defendant had no real bar to the action. Hutch. Code, 639, § 3; 12 Johns. Rep. 278, 279.
    
      F. Anderson and C. S. Tarpley, in proper person for defendants in error,
    Cited Gwin v. McCarroll, 1 S. & M. 351; Water Works Bank v. Washington, lb. 536; 1 Modern Rep. 207; 2 Tidd, Pr. 766; 1 Saund. 80, n. 1; 2 Tidd, Pr. 798; Chit. Bills, 43 - 45; 1 Bibb, 502; 3 Marsh. 184; 6 Munf. 3.
   Per curiam.

The defendants pleaded specially, that they had been sued by plaintiff in the United States court on the same cause of action, and obtained a judgment in their favor, by which they were discharged from all liability on account of the demand sued on in this action.

The plaintiff demurred to the plea, which demurrer was overruled on the 6th of May, and judgment rendered in these words : “ Came the parties aforesaid, and the demurrer of plaintiff to defendants’ plea is overruled, and plaintiff saying nothing, it is considered by the court that defendants go hence with costs.”

On the 8th of May the plaintiff moved to set aside the judgment, and for leave to reply to the defendants’ plea. This motion was continued to the subsequent term and then overruled, to which exception was taken.

On the hearing of the motion, the counsel presented the record of the suit in the United States court, accompanied by an affidavit, that he did not believe it constituted a bar to the present action. That record shows that the judgment was given on demurrer to the declaration, which assigned as cause, that the instrument sued on was not a bill of exchange, and therefore the indorsee could not maintain an action in his own name.

It will thus be seen that the only points presented are, Did the court err in overruling the demurrer and in its judgment thereon! and, secondly, Did it err in refusing to sustain the motion for leave to reply !

The plea seems to be substantially good. If the judgment pleaded was not a sufficient bar, that was only to be determined by taking issue. On a replication of mil tiel record, the legal sufficiency of the judgment would have been a question for determination.

But the second point we think is with the plaintiff in error. Before the statute of 1840, applications to amend were addressed to the discretion of the court. If the court would have had power to allow this amendment before the passage of that statute, it is made a matter of duty since. What was before a matter of discretion is now obligatory. Wharton v. Porter, 10 S. & M. 305. If the application had been made before, or even at the time of the decision on the demurrer, it might have been granted. Gwin v. McCarroll, 1 S. & M. 351. But the argument is, that this application was not made until after final judgment had been entered. This reasoning would be very conclusive if there really had been a final judgment, but the statute makes judgments on demurrer final only on the last day of the term, until which time they may be set aside. H. & H. Dig. 616, § 9. The act of 1840 provides, that if it shall be discovered at the trial term, that the pleadings are defective, they shall be amended. Its object was to have every case tried on its merits. Of course no amendment can be made after trial and final judgment. That terminates the cause. But as this judgment was not final until the last day of the term, the party was still in court, and was bound to answer the motion. Besides, the practice has always been to set aside judgments by default on affidavit of merits, and this judgment is similar in effect.

It was also insisted, that the judgment should have been respondeat ouster, on the authority of Lang v. Fatheree, 7 S. & M. 404. The point was not material in that case, and the remark was evidently made under a mistake, and the rule which applies when a demurrer to a plea has been sustained, was made to apply when it has. been overruled.

The judgment is reversed, and the cause remanded.  