The statutes of Mississippi provide that no plea of
non est
factum shall be admitted or received unless the truth thereof
shall be proved by oath or affirmation.
A plea of that kind was filed without the affidavit, and
demurred to by the plaintiff.
Although, upon the general principles of pleading, a demurrer
only calls is question the sufficiency of what appears on the face
of the pleading, and does not reach the preliminary steps necessary
to be taken to put it upon file, yet as the state courts where such
a statute exists have held that the plea of
non est factum
is demurable if there be no affidavit, and the course of practice
in the circuit court conforms to the state practice, this Court
also holds that such a plea is demurable.
Page 64 U. S. 444
The nature of the suit and the various defenses made are stated
in the opinion of the Court.
MR. JUSTICE CAMPBELL delivered the opinion of the Court.
The plaintiff instituted this suit upon a sealed instrument,
made in the name of the City of Vicksburg, payable to bearer. The
defendant pleaded fifteen pleas, to ten of which the plaintiff
demurred, and judgment was rendered for the defendant on the
demurrer. Some of these pleas involved important questions touching
the validity of the instrument, which have, since the decision of
the circuit court, been the subject of discussion in the Supreme
Court of Mississippi and in this Court. It is conceded that nine of
the pleas were insufficient, and that the demurrers should have
been sustained to them. The remaining plea is the ordinary
non
est factum. This was filed without an affidavit of its truth,
and this is required by a statute of Mississippi to authorize its
reception. But the defendant contends that it is the office of a
demurrer to call in question the sufficiency of a declaration or
other pleading upon what appears upon its face, without reference
to any extrinsic matter; that the affidavit is not a part of the
plea; it is only that which is necessary to authorize the plea to
be placed on file, and it may be waived either expressly or by
implication. The filing of the plea is only irregular, and a
demurrer or replication to it is a waiver. Upon the general
principles of pleading, we assent to the accuracy of this
argument.
Commercial & R. Bank of
Vicksburg, 13 Pet. 60.
Nicholl v. Mason, 21 Wend. 339.
But in courts of states in which this statute exists, a plea of
non est factum, without the affidavit required by it, is
demurable. Such is the practice in Mississippi.
Smith v. Com. Bank of Rodney, 6 S. & M. 83.
Page 64 U. S. 445
Johnston v. Beard, 7 S. & M. 214.
Bancroft v. Paine, 15 Ala. 834; 4 Ala. 198.
We do not question the power of the circuit court to maintain
the rules of pleading in the manner of applying the statutes of a
state, or it may adopt the usual practice in the state if not
contrary to an act of Congress.
We learn that the course of practice in the circuit court
conforms to the state practice. We suppose that it would be a
surprise upon the plaintiff, and might work injustice, if we were
to sustain the plea under such circumstances.
Judgment reversed and cause remanded.
