delivered the opinion of the court: This was an action of debt brought by the plaintiff below, in Clark Circuit Court, against the defendants, as sureties on a Sheriff’s bond. As the case now appears before us, we deem it unnecessary to notice several steps that were taken in the early stage of the proceedings. At the March term of the Circuit Court the plaintiff filed an amended declaration, to which the defendants demurred. The demurrer was overruled and they obtained leave to plead over to the action. Their first plea was a special non cst factum, and their second the plea of conditions performed. The plaintiff put in a replication to the second plea, assigning the breaches upon the bond; to which there was a rejoinder by the defendants, and issue. The plaintiff demurred to the first plea, and the demurrer was sustained. The defendants had leave to plead over, and they tendered another special plea of non est factum, or rather an amendment to their first plea. The plaintiff objected to the filing of the plea, but the court overruled the objection and permitted the plea to be filed. He then demurred to it, and the demurrer was overruled, and issue was then taken on the plea. Under this state of pleadings the parties wont to trial, and a general verdict was found for the defendants. The plaintiff then moved the court for a new trial, and in arrest of judgment, and the motions were taken under advisement and continued until the October term of 1832, when the motion in arrest of judgment was overruled; and at the April term, 1833, the motion for a new trial was also overruled. The plaintiff then tendered a bill of exceptions which is made part of the record; and appealed from the judgment of the court below.
Before entering into an examination of the questions presented for aur consideration in this case, it may not be amiss to state the rule pf practice'that this court will adopt in all cases coming before it for-revision or correction by appeal oi upon writs of error. It is evident that there is no difference between the two classes of cases, and that they stand upon the same footing and must be governed by the same rule of proceeding. The principle may now be considered conclusively settled upon reason and authority, that on all appeals or writs error jfrom an £nferior fo a SUperior jurisdiction, the whole record is open for re-examination and revision, and that the party injured shall have full benefit of all and every objection and exception that would have availed him upon the proceedings in the court below, though not formally made or taken at the time of the trial; provided the error, defect, imperfection, or omission, be not waived by the pleadings, cured by the statute of amendment and Jeofails, or aided by verdict.. This is believed to be the uniform rale of practice in all supreme or appellate courts, and in strict conformity with our own statutory provisions on the subject. See 2 Starkie, 430; 2 Tidd, 290; 5 Johnson’s C. C. 489; Dugan vs. Cureton, Ante page 31; Acts of the Legislature, 1836, p. 133, sec. 15.
It is first necessary, before we examine the main questions arising upon the assignment of errors, to dispose of a preliminary objection made and insisted on in behalf of the defendants. It is said that a party shall not have a motion for a new trial after he has first moved in arrest of judgment, and that has been decided against him by the court. We do not mean to question the rule or its authority, but it can have no application in the present case. ' He did not file his motion in arrest of judgment first, and when that was adjudged against him, come in with his motion for a new trial. Both motions were submitted by him at the same time, and in proper order, but the court decided them at different periods, and irregularly; overruling the the motion in arrest of judgment first, and the motion for a new trial afterwards. He was certainly entitled to the benefit of both motions, for he filed them rightly, and as he never afterwards waived the privilege of either, consequently the irregularity in the proceedings, which was entirely the action of the court, cannot prejudge his right or deprive him of his advantage, when he has been guilty of no neglect or any mispleading. He cannot be held responsible for the errors or irregularities of the proceedings of the court over which he could exercise no control, or in any way direct. The objection then is not well founded, See 1 Salk. 647; 1 Burr, 334; 2 Tidd, 831; 3 Burr, 1692.
We will now in inquire whether the court erred in overruling the motion for a new trial, and also the motion in arrest of judgment. The defendants relied on two pleas in bar of the plaintiff’s action. The issue found by both, were affirmative in their nature and character; and the whole burden of proof necessarily devolved on the de-fondants. When the plea is non est factum, generally, the proof lies on the plaintiff; but when the plea shows that the deed is void, for special matter, the issue is on the defendant. See 2 Strange, 482; 6 Mod. 218; Com. Dig. Pl. 2, (w.) 18.
The special plea of non est factum, put in issue the execution of the deed, and its continuance as such at. the time of the plea; and negative evidence, or rather the absence of all evidence, that the bond of the Sheriff’ was not approved or accepted by the County Court, certainly does not support the affirmative allegation or issue. . So far as it could be considered evidence in the cause, it would go expressly to disprove the pica. The court then erred in permitting the minutes of the County Court to be read as evidence to raise a negative presumption, when the party was bound to prove an affirmative fact. There is also manifest error in receiving the oral or verbal statement of witnesses in relation to the acceptance or rejection of the Sheriff’s bond by the County Court, when that fact, if it existed at all, could only be verified by the record itself. This principle is too clear and self-evident to require either comment or authority to sustain it.
In relation to the second plea, of conditions performed, the defendants are in no better condition. The bill of exceptions contains all the evidence given on the trial, and there is not the shadow of proof adduced in support of the plea. It is expressly disproved by their own witnesses, and that too, affirmatively. Besides, the plaintiff produced two executions which carne to the hands of the Sheriff, and they showed that he had collected the money upon them and failed to pay it over. Consequently, both he and his sureties are liable; and these facts unquestionably disprove the defendant’s plea of conditions performed.- It follows from these conclusions, that the court erred in not setting aside the verdict and awarding a new trial; for it is a well established principle, and one that cannot he controverted, that where the defendants take upon themselves the burden of proof, and fail to prove the issue, a new trial will be granted. See Steph. on Pl. p. 123; I Burr, 393 to 398; 3 Bibb, 35, Bacon vs. Brown; Ditto 224. The court erred in not arresting the judgment.
The defendant’s special plea of non est factum, denies the execu-. tion of the deed, and their plea of conditions performed, admits its execution, and affirms that their covenant has not been broken, but kept and performed according to the conditions of the bond. There is5 then a manifest absurdity and contradiction of the issues made up ^ ^w0 p]eaSj "an(j the existence of one fact presupposes the non-. existence of the other; and the question has been repeatedly determined, and that by the best authorities, that when there arc two. issues, materially inconsistent and- contradictory of each other, no valid judgment can be pronounced upon them. See 2 Tidd, 831; 6 Com. Dig. 245; 2 Peters' Con. Rep. 98, 102; 4 Johnson, 213.
We are not prepared to admit that the special plea of non est' fac-tum, if it even had been established by legal or competent proof, would form a good bar to the plaintiff’s action. The case of Paulding, et al vs. the United States, simply decides this question, that a bond may be delivered as an escrow, to one of the obligors; which does not in the slightest degree counteract the general doctrine on the subject. A bond cannot be delivered to an obligee as an eserp.w. The moment such a delivery is made, the deed, to all intents and purposes, becomes absolute and unconditional; and the parties are bound by it. In the pase now before the court, the delivery of the Sheriff’s deed was to the Clerk of the County Court, who, if not strictly an obligee, received it for the obligee, which is the same thing; and consequently the bond of the Sheriff could not become an escrow, and he and his sureties are liable upon it, The statute requires that before a sheriff shall enter upon the discharge of his duties, he shall give bond with good and sufficient security to the Governor, and his successors in office, to be approved or accepted by the County Court; which ^clearly shows that when he has executed the bond, with his sureties, neither he nor they are released from any previous liabilities though the County Court should refuse to receive or accept the bond, If these positions be true, then the special plea of non est factum, as pleaded by the defendants in the record, can form no bar to the plaintiff’s action. 2 Starkie, 477; Cro. Jac. 85, 86; Shep. Touchstone, 58; Coke on Lit. 36, (a); 2 Peters' Cond. Rep. 277.
The judgment of the pourt below must therefore be reversed, the cause- remanded, to be proceeded in conformably to this opinion; and the appellant have judgment against the appellees for his costs in this court expended.
And at the same term, Halt., for the appellees, filed the following motion and argument for a re-hearing in this case:
In the decision of this case the court has been pleased to inform the plaintiffs and their counsel, that the appellants’ motion for a new trial was made in proper order, and that the decision of the motion in arrest of judgment, first, was an irregularity in the court.
We are constrained to ask the court to re-consider the opinion in this particular. The only part of the record returned in this case which relates to the order in which these motions were filed, is in the following words, to wit:
“And afterwards, to wit, at the same court, continued and held as “aforesaid, before the same judge, on the 30th day of March, 1830) “the following proceedings were had in said cause, and entered on “the record of said court, viz: John Pope, Governor of the Territory “ of Arkansas, for the use of Thomas Reed, vs. Mastín Latham, Robert “ Frier, and Silas McDaniel, impleaded with Joseph Butler, defendants, “This day came the parties aforesaid, by their attorneys, and the “ plaintiff filed his motion in arrest of judgment, and also his motion “for a new trial in this case; whereupon it is ordered that this cause “ be continued until the next term of this court.”
The record shows that these motions were argued and decided at Subsequent terms of the court, precisely in the order in which they were filed. Both these motions, as appears by the copies bf them returned by the clerk, correspond in date with the above entry. Ac-' cording to Lord Coke, pleadings must not only be interposed in apt time, but in due order; the quando et quomodo must appear: that is, the record must show that the pfeas were filed, not only in apt time, but in due order. It cannot be contended that the fact of the clerk having copied the motion for a new trial first, in the transcript, makes any difference. He has given true copies of both motions, and has given a true copy of the record of the filing thereof. The defendants also insist that the argument of the motion in arrest, first, was in itself a waiver of the motion for a hew trial, provided it had been first filed; and if the court had arbitrarily ruled him to argue his motion in arrest first, he should have taken his bill of exceptions. The court has obviously considered the copies as given by the clerk, as evidence of the order in which these motions were filed. Whereas, the entries from the record, as transcribed, show their order and their relation to each other. The fact that he did not wait until the motion for the arrest of judgment was overruled,.can make no difference. if he interposed his motion in arrest, as he obviously did, first, he cannot afterwards file a motion for a new (rial. Fiat, justicia, ruat caelum ! Two several transcripts of this case have been certified 1° this court, and .both of them show that the motion in arrest was jn(;Crp0get] grstf R was admitted in the argument; but it was alleged to be a clerical misprision; and wo offered to call in the Judge who tried the case, and set it right; they replied, “ Timco Dañaos et Dona. Ferentesand all then considered this matter as settled. If it could be considered doubtful, this court, knowing, as they certainly do, that the fact is recorded differently in the Circuit Court, would order it to be certified correctly. This court has also decided that the Circuit Court erred in not arresting the judgment; and the reason given is, that the defendant’s pleas are contradictory and inconsistent. By the Statute of Arkansas, (see Digest, p. 321, sec. 22,) the plaintiff in re-plevin, and the defendant in all other actions, may plead as many pleas, either of law or fact, as he may think proper: and this statute gives the right to be exercised at the will and pleasure of the defendant, without regard to the opinion of the Circuit Court, or any other person whatever; and the authority cited by the court from 4th Johnson's Reports, 213, is a case in point. This was an action on a bond, and a general plea of non est factum, and a plea of performance of conditions, were interposed, and the court not only sustained the pleas, contradictory as they were, but they set aside the verdict against the defendant, because it did not find both the issues against him. As to the right to plead double, see 1st Chitty, p. 540, 1, 2, &c. If there is any authority against it, they are cases adjudged at the common law, or where the statute requires the leave of the court to he first had and obtained; and I doubt whether any court, at this day, would refuse leave to plead double. However, we are gratified that the philosophy and liberality of our laws, has absolved us from consulting any authority but our own will. This court has said that they are not prepared to admit that the special plea of non est factum, if it had even been established by legal and competent proof, would form a good bar to the plaintiff’s action: and the reasons given are, that a bond cannot be delivered to an obligee as an escrow. • In answer to which, I beg leave to suggest that if that plea was sustained by legal and competent proof, it would show a delivery of the deed to one Isaac Ward, and not to the obligee, or any of his agents: nor is there any plea in this case showing a delivery to the clerk. Indeed, sir, this plea has stood the test of the most technical rules of special pleading, before the ablest Judges in Arkansas,-and was found to be certain, to a certain intent, in every particular, This, sir, shows a delivery of the deed upon a condition, not only lawful, but laudable; with a proper commencement and conclusion. No matter dehors the record can be a ground for arrest of judgment; and if it was proved upon the trial that it was delivered to the clerk as such, which these defendants do not admit, yet it would form no ground for arresting the judgment, whatever ground it might afford for a new trial; for no extraneous matter can afford any ground for arrest of judgment. And how the court could conceive that the defendant’s plea is bad, containing an averment of a delivery to the clerk, when no such allegation is found in the plea, is to these defendants inexplicable; and liow the court come to the conclusion that the plea, as pleaded by the defendants, could form no bar to the plaintiff’s action, is equally inexplicable: and the authority cited by the court from Starkie, Cro. Jac., Sheppard, Coke on Lit., and Peters’ Cond. Reports, all show that this plea is pleaded according to the most technical rules. And I have concluded that the court meant to say, not that the plea, as pleaded, was bad, but that the proof adduced on the trial was not sufficient to sustain or establish the plea, as pleaded.
The court seems to suppose that the defendants held the affirmative, and were bound to prove the rejection of the bond; whereas, there is no such condition set forth in the plea; the condition stated in the plea is, that if the bond should be accepted and approved, it. was to be absolute. And if r:ot accepted and approved, to be void: whether tendered and accepted or approved, is a matter in pais, which is to be proved by the best evidence the nature of the case admits of. It does not differ in principle from any other agreement. If 1 deliver a bond to A, upon the special condition that he tender it to you for a precedent debt, and to be my deed on condition that it be accepted in payment of such precedent debt, and if not to be cancelled; here it is clear that all these facts may be proved by the witness to the contract in the principal case. The court are required to keep a record of what they do, but they are not bound to keep a record of what they do not do. Here the condition was, that the court should accept and approve, which it alleged they did not do; and how is it to be proved, quod non apjparentibus el non existenfibus eadem est ratio; and it is sufficient to show either by witness or by the record, that there is no such approval. But suppose I am mistaken, and suppose, for the sake of argument, that this motion for a new trial is still open for investigation, the utmost that the court can do, is to do what the court below ought to have done: that is, to grant a new †0< the plaintiffs upon the payment of costs. Whereas, the court has given judgment against the defendants, for all the costs in this Court and in the Circuit Court. The defendants insist that the costs of this court only, can attach to this appeal; and the other costs should await the event of the suit in the court below. The defendants also insist that if this judgment is reversed, it should be reversed back to the first default in pleading; there is no profert made of the supposed bond, or copy .thereof, and the objection was taken on special demurrer and the point reserved.
The defendants also insist that this contract, if binding at all, is good only as a common law obligation, being payable to W. S. Fulton, Secretary, &c., and therefore cannot be sued in the name of the Governor.
But the court overruled the motion for a rehearing.