Levi Woodbury

“ I think the judgment of the District Court may be supported, on the ground that the decision on the demurrer had become immaterial after the verdict on the general issue. The special plea out of which the demurrer arose applied only to three counts. There was a fourth count, to which no defence was made except by the plea of the general issue; and according to the law and practice of Mississippi, one good count is sufficient to support the judgment when there are several counts in a declaration, and the others bad. ”

“ Where one material issue is decided going to the whole declaration, it is of no consequence how an immaterial issue going only to a part of it is found, if no injury be done by it to either party. 6 Missouri, 544. And by parity of reasoning, it would be of no consequence whether it was decided at all or not, if enough else is decided to dispose properly of the whole case.
What fortifies these views is the fact, that the defendant never procured a joinder to his demurrer by the plaintiff. ”

“ So much as to the waiver of the demurrer. But if the demurrer was not, in truth, waived or withdrawn by the defendant, or cannot be now so considered, from all which appears on the record, the presumption from all is evident, that the demurrer and special plea were actually decided on by the court, and the omission to enter it on the record may be cured by the statute of jeofails. ”

“ The whole record connected with the demurrer is open on the writ of error, and judgment goes against the earliest fault. Breese, 207; Morgan v. Morgan, 4 Gill & Johns. 395.
In regard to the suggestion, that the demurrer might have applied to some other objection than the statute of frauds, either in the plea, or, going back to the declaration, some defect there (as the first defect bad on general demurrer is the fatal one, 1 Chit. Pl. 647) , it is enough to say that no other appears, then or now, to have been pointed out, and none is intimated in the argument for the plaintiff in error. ”

“ The cases on this subject are so much more numerous in the States than in England or in this court, that we oftener find it necessary to resort to them for analogies in support of our reasoning as to what should, under all the facts, be presumed. ”