Wm. H. Garlington, et al., Plaintiff in Error, vs. B. F. Priest, Sheriff, &c., Defendant in Error, 13 Fla. 559

RAH D ALL, C. J., delivered the opinion of the Court. Charles Phinney and Robert S. Phinney, plaintiffs in execution, caused a levy to be made upon certain negro slaves alleged to be the property of William H. Garlington, the defendant in execution. The defendant availed himself of the provisions of “

an act providing for the stay of executions in this State,” approved December 13, 1861, and gave a bond in the sum of $8000, conditioned for the forthcoming of the property twelve months after peace is made and proclaimed between the Confederate States of America and the United States of America. In 1867, this action' of debt is brought upon this bond against the principal, Garlington, and the sureties, Jesse Williams and others. The defendants crave oyer of the b6nds, which being shown, they interpose eight pleas in bar to the action.

The plaintiff demurs to these pleas, and the demurrer is sustained by the court, and the defendants were permitted to file eleven pleas in bar. These pleas are again met by a demurrei’, the demurrer is sustained by the court, and a judgment nil dieit is entered upon the motion of the plaintiff and a writ of inquiry is awarded returnable to the next term.

At the next term this judgment nil dieit is vacated upon defendant’s motion and they are permitted to file a plea puis darrien continuance, which was demurred to by the plaintiff and the demurrer sustained by the court, when the defendants were again granted leave to file an amended plea.’ The plea is as follows : “The said defendants, Jesse Williams and Pickens Creswell, by Gary their attorney, for amended pleas since the last continuance and for a plea on equitable grounds, say that the said supposed writing obligatory in the plaintiff’s declaration mentioned, was executed under the provisions of

an act of the General Assembly of the State of Florida, styled “

an act providing the stay of executions in this State,” approved December 13th, A. D. 1861, whilst the said State was in rebellion with the United States, which said act and said writing obligatory are, and have become null and void, and in conflict with, and contrary to the spirit and provisions of the constitution of the United States and of the State of Florida, and this the said defendants are ready to verify.” To this plea there was a demurrer and joinder, and the demurrer was sustained by the court.

The plaintiff then moved for a judgment nil dioit which was awarded, and the plaintiffs damages being assessed at $4,608.80, a final judgment for that amount was entered and' the defendants now prosecute a writ of error from this eourt. The plaintiff in error insists very properly that this court can consider nothing except the judgment upon the demurrer interposed to the last pleas. The precise question arose in the case of Walker vs.

Wills, 5 Ark., 167, and it was there held that “ when a demurrer is sustained to a plea and leave is asked and granted to file another, the first plea is abandoned, and the decision on the demurrer cannot be considered here.” In Clearwater vs.

Meredith, 1 Wallace, 42, it is held that “ where a plaintiff replies to a plea and his replication being-demurred to is held to be insufficient, and he files a new replication, he waived the right to question in this court the decision in the court below on the sufficiency of what he had first replied.” As a matter of course the rule applicable to plaintiff’s replication is applicable to defendants’ pleas, and in this case, after demurrer sustained to his first plea and his filing new pleas, he waived any right he might have had to question the correctness of the decision of the court on the demurrer to the first plea.

In like manner he abandoned his second set of pleas when by leave of the court he filed the third, and he abandoned the third when he filed the fourth; and the consequence is we can only review the judgment of the court upon the demurrer to the last plea. Before proceeding to examine the judgment of the court upon the demurrer to the last plea, we deem it proper to' make a remark in reference to the exercise of discretion in this case by the court in permiting three new sets of pleas to be filed at the pleasure of the defendant.

The plaintiff presumes that the defendant when he files his plea sets up all the defence which he proposes to make, and the court (even if it is admitted that it may permit it at all,) should not permit new and other pleas to be filed after judgment upon demurrer against the defendant, except in a plain case where it is manifest that the justice of the case requires it, and where the court is satisfied that it is not interposed for delay only. When a party has come in and filed his pleas and they are pronounced insufficient upon demurrer, it is not a matter of course that he may plead de novo as in this case.

It is his duty to set up all his defence at first. If such was not the rule, it is not seen where .there could be an end to a suit. The practice of permitting defendants to interpose successive sets of pleas without any control and at their will and pleasure, is in conflict with all proper ideas of practice. This discretion, if it be exercised at all, should be exercised in such manner as to teach parties that they must have all their defences in at the first, and that it is a serious omission not to do so.

The judge should inspect the plea proposed to be filed, and if it is a repetition of a previous plea, or if it is not a good defence, or if the judge thinks it is interposed for delay, or there is any other like good reason, he should refuse leave to file it. The record discloses that there was no formal judgment entered upon this demurrer, and it contains nothing more than a simple entry endorsed upon the demurrer to the effect that it was sustained. After this there is a final judgment for want of a plea. This is incorrect, and this final judgment must necessarily be reversed.

The defendant had not failed for want of a plea. He had in fact filed some twenty pleas, and they were pronounced insufficient upon demurrer. The proper judgment in the case was a final judgment upon the last demurrer. Setting aside this judgment and indicating to the court below the proper judgment to be given in this case, brings ns to the consideration of the last plea.

If it appears by the record that the plaintiff has no cause of action against these defendants, and that the defect is such that no amendment can be made which will cure it, it is immaterial whether the question was raised in the court below or not; the judgment cannot stand. The first

section of the act under which this bond is alleged to have been executed reads as follows : “ That there shall be no sales under executions and judgments at common law or decrees in chancery in this State until twelve months after peace is made and proclaimed, or until otherwise provided by law, between the Confederate States of America and the Hnited States of America, except by the consent of the defendant or defendants; provided, nevertheless, that in case of any levies the defendant or defendants, by themselves, their agent, attorney at law, or attorney defacto, be required to give bond, with good and sufficient security, (to be approved by the sheriff making said levy,) for the forthcoming of the property on or at the time above specified in this section.” It is urged by the plaintiff in error that the act of the Legislature referred to has become null and void'by the adoption of the State Constitution of 1868, but it is deemed unnecessary to resort to the fifteenth

article of that Constitution as authority for declaring void ab mitio a prior act of the Legislature which was inconsistent with the terms or spirit of the Federal Constitution. But I regard the first

section of

Article XY of the present State Constitution as embodying a principle of law applicable to the eases contemplated by it. It reads, “ that all ordinances and resolutions heretofore passed by any convention of the people, and all acts and resolutions of the Legislature conflicting . or inconsistent with the constitution of the United States and the statutes thereof, and with this constitution, and in derogation of the existence or position of this State as one of the States of the United States of America, are hereby declared null and void and of no effect.” Sections two and three of the same

article expressly ratify all acts of the Legislature passed during the war, or at any time previous to or since that event, which are not inconsistent with the Constitution of the United States or the State Constitution of 1868, This was doubtless adopted to save the confusion which would follow the holding of all acts of legislative bodies (which bodies might not be considered strictly legal,) to be invalid.

I consider that all acts of any legislative body passed during the period of the supremacy acknowledged by this State of the “ Confederate ” government, which were adopted in contemplation of such supremacy and in view of the overthrow of the constitution and government of the United States, as utterly void and of no effect, except so far as individual acts under such laws may, perhaps, be excused by reason of the compulsory nature of such legislation and the inability to resist its enforcement.

The act in question expressly recognizes the dismemberment of the United States and the establishment of the Confederate States of America. The war, then in its incipiency, is therein recognized as a war between two nations capable of making treaties with each other. The act holds out to the debtor an inducement to aid in prolonging the war as a means of obtaining an extension of credit or a postponement of the time of payment.

It holds out to the creditor an inducement to labor in aid of the success of an inchoate power in its war upon the government of the United States, in effect the destruction of that arovernment and the establishment of another in its place, in order that the security may become valid and his debt saved.

And though the one may have supposed himself to be beneficially interested in a prolongation of the contest by delaying the day of payment, and the other in hastening the result, and thus a sort of antagonism may have existed between the debtor and creditor, both were induced to oppose the success, either immediate or remote, of the United States government and the supremacy of the constitution of the United States as the national law.

Had the Confederate government succeeded in establishing itself, displacing that existing under the constitution of the United States, this statute in question may have been acknowledged as the law and all acts under it have been valid, (unless it be further subject to the objection that it impairs the obligation of contracts ;) but with the disaster* which put an end to the framework of the Confederacy fell also all statutes, all ordinances and contracts passed or entered into contemplating and depending upon a different result.

It may be said that the creditor was not a party to the bond ; that the sheriff only was the party protected or saved by it; that the creditor has suffered, and that this is a sufficient consideration on his part, and the delay of payment is a sufficient consideration on the part of the debter for the enforcement of the bond.

However this might have been if the statute were not liable to the denunciation of its nullity, and had it provided merely a stay for a given period, depending upon no such illegal contingency, no consideration can be countenanced which seeks to uphold a contract that in any respect contemplated the destruction of the national life or the national integrity. But the statute being null from the beginning for the reasons stated, no bond or agreement based upon it will be considered valid for the purpose of enforcing it.

It is tainted with the illegality of its origin and cannot be enforced in any court bound by a sacred pledge to observe the constitution of the Union. We are obliged to look upon this contract from the standpoint of that constitution, and from this aspect we see that the statute and the bond contain elements contravening the spirit of the constitution 'and antagonistic toward the government of the United States, and hence are void as against public policy, even though they contain other provisions which are not subject to these objections.

For it is an acknowledged rule that where an entire agreement contains an element which is legal, and one which is against public policy and therefore void, the legal consideration cannot be separated from that which is illegal so as to found an action upon it. Ross vs. Truax, 2 Barb., 361; Pettit vs. Pettit, 32 Ala., 288; Collins vs. Merrell, 2 Met. Ky., 163 ; Valentine vs. Stewart, 15 Cal., 387; Gelpeke vs. City of Dubuque, 1 Wal., 221.

The statute being void, the sheriff was not lawfully authorized to take this bond and discharge a levy under execution, nor could the debtor under such circumstances lawfully insist upon the release of his property. In Alabama, it has been held that

an act prohibiting the issue of an'execution without the written consent of the defendant, until after the expiration of one year from the ratification of a treaty of peace between the Confederate States and the. United States, was void, whether tested by the constitution of the United States or that of the Confederate States. Ex parte Pollard, 40 Ala., 77; Hudspeth vs. Davis, 41 Ala., 389. The judgment for want of a plea should be reversed, and the cause remanded with directions to enter final judgment for the defendants upon the demurrer of the plaintiff to the last plea.