The United States, Plaintiffs in error, v. James A. Girault, William M. Gwin, Hay Battle Harrison, and Alexander J. McMurtry, 11 How. 22

Mr. Justice NELSON delivered the opinion of the court. This is a writ of error to the District Court held in and for the Northern District of Mississippi. The action was brought on the official bond of Girault, a receiver of the public money, against him and his- sureties.

The bond is dated the 8th of July, 1838, and conditioned that he shall- faithfully execute and discharge the duties of the office of receiver.' The breach assigned is', that on the 2d of June, 1840, the said •Girault had receivéd a large amount of the public moneys, to wit, the sum of $ 8,952.37, which he had neglected and refused to pay over to the government. All the defendants were personally served with process.

The sureties appeared, and pleaded, — .l. -That after the making of the bond in the declaration mentioned, and before the commencement of the suit, to wit, on the 25th of September, 1840, a certain other official bond, was given by Giráult and others to the plaintiffs, describing it, which they accepted in full discharge and satisfaction of the first one. 2.

That-on the 2d of June, 1840, and on divers days before that day, the said Girault gave receipts as receiver for moneys paid on the entry of certain lands therein specified, and returned'the same to the Treasury Department, to the amount of ten thousand dollars, and of which the amount in the decía-, ration mentioned was part and parcel. And that neither the ten thousand dollars, nor any part- thereof, was paid to or received by him, the said Girault. 3. The same as the second, except that the receipts - given were for several parcels of land entered by Girault for his own. use.- '4.

That no public moneys of the United States came to the hands of Girault, as receiver, after the execution of the bond, nor were there any received by him, for which the defendants were accountable by virtue of said bpnd, prior to the execution of the same, remaining in his hands, as suoh. receiver at the time of the execution, or at any time afterwards, which had not been paid over and accounted for according to law before the commencement, of the suit. To these several pleas, the. plaintiffs put in -a general- demur-' rer,- to which there- was a’joinder.

The court gave judgment for the plaintiffs on the first plea; and for the defendants on the second, third, and fourth. Upon which the plaintiffs bring error The first plea is not before us, as judgment was rendered for th.e plaintiffs. It is undoubtedly bad, as the new bond could be no satisfaction for the damages that had accrued for the breach of the condition of the old one. Lovelace v. Cocket, Hobart, 68; Bac. Abr., tit. Pleas, 2, p. 289. The second and third pleas are also bad, and the court below erred in, giving judgment for the defendants upon them.

They are pleas, not to the declaration or breach charged, but to the evidence upon which it is assumed the plaintiffs will rely at the trial, to maintain the action. The breach is general, that the defendant Girault has in his possession' eight thousand nine hundred and fifty-two dollars and thirty-seven cents of the public moneys, which he neglects and refuses to pay over.

The defendants answer, that the evidence which the receiver has furnished the plaintiffs, of this indebtedness is false and fabricated; and that np part of the sum in question was ever collected or received by him; thereby placing the defence upon the assumption of a fact or' facts which may or may not be material in the case, and upon which the plaintiffs may or may not rely in making out the indebtedness.

A defendant has no right to anticipate or undertake to control by- his pleadings .the nature or character of the proof upon which his adversary may think proper to rely in support of his cause of action, nor to ground his defence upon any such proofs. He must deal with the facts as they' are set forth in the declaration; and not with the supposed or presumed evidence of them.

If the defendants are right in the principle sought to be maintained in théir second and third pleas, .a denial of any public moneys being in the. hands of the receiver for which they were liable within the condition of their bond would have answered all their purposes.

For if the plaintiffs possess no other evidence of ¿heir liability than that of the fabricated receipts, and the sureties are' not responsible -for the moneys thus acknowledged, nor estopped from controverting them, a plea to the ‘ effect above stated would have enabled them to present that defence. ■ The principle, however, upon which these pleas are founded, is as indefensible as the rule of pleading adopted for the purpose of Setting it up. The condition of the bond is, that Girault shall faithfully execute and discharge the duties of his office as a receiver of the public moneys.

The defendants have bound therpselves for the fulfilment of these duties; and are, of course, responsible for the very fraud committed upon1 the government by that officer,' which is sought to be set up here in bar of the action on the bond. As Girault would not be allowed to set up his own fraud for the purpose of disproving the evidence of his indebtedness, we do not see but-that, upon the same principle, they should be estopped from setting it up as committed by one for whose fidelity they have become responsible. This is not like the'case of the United States v. Boyd and others (5 How. 29).

There the receipts which hadrbeen returned to the Treasury Department, upon which the indebtedness was founded, and which had been given on entries of the public lands without exacting the money, .-in frapd of the government, were all given before the execution of the official bond upon' which the suit was brought.

The sureties were not, therefore, responsible for the fraud; and it was' these ’transactions qn ■ the part of the receiver, Which had -transpired anterior to the time when the sureties became answerable for the faithful execution of his duties, in respect to which it was held that they could not be estopped by his returns to the government. No part of them fell within the time covered by the official bond. The fourth plea affords a full and complete answer to the breach assigned in the declaration, and should not have been demurred to.

As it takes issue upon the breach, it should have concluded to the country; but this defect is available only by a special demurrer.- As the demurrer'put in is general to the four several pleas, if any one. of them constituted a good bar to the action, the demurrer- is bad.- On this ground the judgment -«(as properly given against the plaintiffs in the court' below. They should have asked leave to withdraw the demurrer as to the fourth plea, and have taken issue upon it, instead of allowing the judgment to stand, and bringing it to this court on error; .

Indeed, when these pleas were put in, the plaintiffs, in order that the case might be disembarrassed of any technical objections or difficulties on account of the pleadings, • should have amended their declaration by assigning additional breaches covering the malfeasance in office set up in the second and third pleas. This would have met the grounds of the defence raised by them, and have presented the issues appropriately upon the condition of the bond, whether or not the receiver had faithfully executed the duties of his office.

The defendant Girault, it appears, was personally served with'process, but did not appear. The plaintiffs have not proceeded to judgment, nor discontinued their proceedings, as to him. As the case stands, therefore, there is a joint suit against ' four defendants on the bond, a judgment in favor of three, and the suit as to the fourth undisposed of.

According to the practice in Mississippi, founded upon a statute of the State, in the case of a joint action on a bond or note, separate judgments may be taken against the several defendants, whether by default or on verdict; and the plaintiff may take judgment against some of the defendants, and ..discontinue as to others. But it is there deemed error, for which the judgment will be reversed, if final judgment is entered up by the plaintiff before the case is finally disposed of in respect - to all the parties on the record. 2 Howard, (Mis.) 870; 4 Ib. 377; 6 Ib. 517; 7 Ib; 304.

In the case in 6 Howard, above cited, the plaintiffs brought a suit against two defendants'on a sealed note. The writ was returned served as to one of them, and non est as to the other. The declaration was filed against both, and the one personally served appeared and defended ; and a verdict was found against him on which judgment was entered, the case remaining undisposed of as to the other defendant.

On appeal the court reversed the judgment,' remarking that the casé should have been disposed of as to all the parties; there is no. judgment of discontinuance or dismissal as to one of the defendants. . .The same point was ruled in the case in 2 Howard above referred to; and-also in that in 7 Howard.

In the last case it’ is said that it is irregular to enter a final judgment against part of the defendants without disposing of thé cause against the others; that it was regular to take judgment by default against those who did not plead; but the judgment in the case should not have been finally entered until the cause was ready for final disposition as to all.

The practice in this court, in case the judgment or decree is no.t final, is to disiriiss the writ of error or appeal for want.of jurisdiction, and remand it to the court below to be further proceeded in. 4 Dallas, 22; 3 Wheat. 433; 4 Ib. 75; 6 Howard, 201, 206. This is also the rule of the King’s Bench in England. Metcalfe’s case, 11 Co. 38. It is there laid down in the second resolution, that by the words in the writ, si judicium, inde redditum sit, &c., are .intended, not only a judgment in the chief matters in controversy, but also in the whole of them, so that the suit may be at an end.

The reason given is, that, if the record- should be removed' before the whole matter is determined in the court below,-there would be a failure of justice, as the King’s Bench cannot proceed upon the matters not de-. termined, and upon which no judgment is given, and the whole record must be in the Common Pleas or King’s Bench. It is entire, and cannot be in both courts at' the same time. The writ is .conditional, and does not authorize the court below to send up the case unless all the matters-between all the parties to the record have been finally disposed of.

The case is not to be sent up in fragments, by a succession of writs of error. Peet v. McGraw, 21 Wend. 667. It is supposed that, inasmuch as judgment is allowed to be entered separately against two or more defendants sued jointly upon a bond or note, according to the statute of Mississippi, the severance of the cause' of action is complete; and that any one defendant against whom judgment may be thus entered can bring error, although the case has not been disposed of as to the other defendants.

And for a like reason, when a judgment is rendered in favor of one defendant against the plaintiff, the latter may bring error before the suit has been disposed of in respect to the others. But we have seen that the practice is otherwise under this-statute, and that final judgment cannot be properly entered against any of the parties until the whole case is disposed of; and that any neglect in the observance of the rule exposes the judgment to a reversal on error in the appellate court.

According to the practice of this court, the judgment, cannot be reversed on account of the error, but the case must be dismissed. for want of jurisdiction, and remanded to the court below, to be p-oceeded in and finally disposed of. , As the case must come before that court for further proceedings, it' may, in its discretion, on a proper application, relieve the plaintiffs from the embarrassments in which the justice of it seems to have been involved, on account of the unskilfulness of the pleader, by opening the judgment on the demurrer, and permitting them to amend the pleadings.

It is apparent that judgment has been rendered against them, without at all involving the. merits of the case. The writ of error is dismissed, and the cause remanded to the court below. Order. This cause came on to be heard on the transcript of the record from the District Court of the United' States for the Northern District of Mississippi,, and was argued by counsel.

On consideration wheréof, it is now here ordered and adjudged by this court, that this- writ of error be, and the same is hereby, dismissed, and that this cause be, and the same is hereby, remanded to the said District Court, with directions to proceed therein in conformity to the opinion of this court.