Matheson's Admin. v. Grant's Admin.
43 U.S. 263

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U.S. Supreme Court

Matheson's Admin. v. Grant's Admin., 43 U.S. 2 How. 263 263 (1844)

How. 263

Matheson's Admin. v. Grant's Admin.

43 U.S. (2 How.) 263

Syllabus

The court below, on motion, arrested a judgment for the plaintiff after verdict, but without entering also that he took nothing by his writ.

The declaration contained two counts; in the first, the plaintiff sued as administrator, and in the second in his own personal right. A general verdict was given, and the judgment arrested on account of the misjoinder of counts.

Afterwards, and before a writ of error was brought, a motion was made by the plaintiff to set aside the order arresting the judgment and for leave to enter a nolle prosequi upon the second count.

An affidavit was filed by the plaintiff's counsel stating that the only evidence offered on the trial was given on the part of the plaintiff, and that the defendant

Page 43 U. S. 264

offered no evidence whatever. The nature of the evidence was also stated, and the facts stated in the affidavit were not controverted.

The court below set aside the order arresting the judgment a year after it was made, and allowed the verdict to be amended by entering the same nunc pro tunc on the first count only.

In this there was no error.

All that is required is that the court should amend the verdict within a reason able time, and this maybe done upon the judge's notes of the evidence given at the trial or upon any other clear and satisfactory evidence. The practice is a salutary one, and in furtherance of justice.

The necessity of a profert of letters of administration depends upon the local laws of a state.

Where the declaration alleges a partnership and the jury finds a general verdict, they must be presumed to have found that fact, and proof that the chose in action was endorsed in blank was sufficient to sustain the first count. The plaintiff has a right to elect in what right he sues.

After all, the question of amendment was a question of discretion in the court below upon its own review of the facts. This Court has no right or authority, upon a writ of error, to examine the question; it belonged appropriately and exclusively to the court below.

In 1818 and 1820, the following promissory note and due bill were given:

"$3,428.18 30 September, 1818"

"Four months after date, I promise to pay Grant and McGuffie or order three thousand four hundred and twenty-eight dollars eighteen cents, value received."

"WM. MATHESON"

"Endorsed:"

"GRANT & McGUFFIE"

"Charleston, 25 February, 1820"

"Due Grant and McGuffie or bearer, on demand, three hundred and forty-four dollars sixty-six cents, with interest from date."

"$344.66 WILLIAM MATHESON"

In 1838, Angus Stewart as the administrator of Grant, who was alleged to be the surviving partner of Grant and McGuffie, brought a suit in the Circuit Court of the United States for the Southern District of Alabama against Murphy and Darrington, administrators of Matheson.

The record (as brought up by a certiorari) showed that the declaration contained the two following counts, first:

Page 43 U. S. 265

"Angus Stewart, who is a citizen of the State of South Carolina and administrator of all and singular the goods and chattels, rights and credits, of Alexander Grant, deceased, who was survivor of McGuffie, late merchants and partners, trading under the name and firm of Grant & McGuffie, who at the time of their death and at the time of the execution of the contract herein set forth, were also citizens of the State of South Carolina, complains of John Murphy and John Darrington, administrators with the will annexed of William Matheson, deceased, citizens of the State of Alabama, in custody, and so forth, in a plea of trespass on the case and so forth, for that whereas the said William Matheson, in his lifetime, on 30 September, 1818, at Charleston, to-wit, in the district aforesaid, made his promissory note in writing, by which he promised to pay said Grant & McGuffie or order, four months after the date thereof, $3,428.18, value received, and then and there delivered said note to said Grant & McGuffe, and also, on 25 February, 1820, said Matheson executed his due bill or promissory note at Charleston, to-wit, in district aforesaid, by which he promised to pay said Grant & McGuffie or bearer, on demand, $344.66, with interest from the date of said note, which periods have long since elapsed; and being so liable, he, the said Matheson, in his lifetime, and his said administrators since his death, promised and assumed to pay to said plaintiff the said sums of money, to-wit, the sums of $3,428.18 and $344.56, according to the tenor and effect of said notes, yet neither the said Matheson in his lifetime nor his said administrators since his death have paid the said several sums of money according to their several promises and assumptions, and the tenor and effect of the said notes, either to said Grant & McGuffie in their lifetime or to said administrator since their death, to the damage of said administrator $16,000."

The second count was as follows:

"And whereas also the said Angus Stewart complains of said defendants, administrators as aforesaid, in custody &c., for that whereas the said William Matheson, on 30 September, 1818, at Charleston &c., made his certain promissory note, in writing, whereby he promised to pay, four months after date thereof, to one Grant & McGuffie or order, $3,428.18, and then and there delivered the said note to Grant & McGuffie, and the said Grant & McGuffie, to whose order the said note was payable, then and there endorsed and delivered the same to the said plaintiffs, of all which

Page 43 U. S. 266

the said Matheson had full notice, which period has now elapsed. And the said Matheson also, on 25 February, 1820, at Charleston, aforesaid &c., made his note in writing, whereby he promised to pay to Grant & McGuffie, or bearer, on demand, $344.66, with interest from the date of the said note, and then and there delivered the same to said Grant & McGuffie, who then and there delivered the same to the said Angus Stewart. And the said note being due and demanded in the lifetime of the said Matheson, he was liable to pay the same, and being so liable, the said Matheson, in his lifetime, undertook and promised to pay the same and his administrators since his death, but neither did the said Matheson in his lifetime nor have his administrators since his death paid the said sums of money according to their several promises and the tenor and effect of the said notes, although said Matheson in his lifetime was, and his administrators have been since his death, frequently requested to do so, to the damage of the said plaintiff $16,000, and thereof he brings suit &c."

To this declaration the plaintiffs in error, Murphy and Darrington, put in two pleas, viz.: the general issue and the statute of limitations.

The case was tried at November term, 1840, when the jury found for the plaintiff, and assessed his damages at $8,250.

At the same term, a motion for arrest of the judgment was made and granted on the ground of a misjoinder of counts and causes of action in the declaration.

At March term, 1841, nothing was done in the case, but in the November term, 1841, on motion of the counsel for the plaintiff, the order of the November term, 1840, arresting the judgment was vacated, the verdict was ordered to be amended so as to apply to the first count in the declaration, the plaintiff was permitted to enter a nolle prosequi on the second count in the declaration, and judgment was directed nunc pro tunc upon the verdict, applying it to the first count in the declaration, and judgment was entered accordingly.

The ground upon which the court set aside the order arresting the judgment &c., was the following affidavit, which was filed, accompanied by the deposition of Chapman Levy, which was the same that was read upon the trial. The deposition is too long to be inserted, but stated in substance that the notes and due bill were handed to Levy for collection in 1821 or 1822, and that long afterwards he, Levy, had a conversation with Matheson, which was supposed to take the case out of the statute of limitations.

Page 43 U. S. 267

"Affidavit"

"Personally appeared before me, P. Phillips, an attorney of this Court, who, being duly sworn, says: that on the trial of the cause of Angus Stewart v. John Murphy and John Darrington, in which a verdict was rendered for the plaintiff at the November term, 1840, of this Honorable Court, the plaintiff offered the depositions of Chapman Levy, Jacob Axon, and _____ McKenzie, and the notes, of which are now on file; that this was the only evidence offered by plaintiff, and that no evidence was offered by the defendants, and that the cause went to the jury upon the above depositions of the plaintiff alone."

"P. PHILLIPS"

"Sworn to and subscribed in open court, 3 December, 1841."

"DAVID FILES, C.C. C. S. D. Ala."

To review the decision of the court in setting aside the order for arresting the judgment &c., the writ of error was brought.

Page 43 U. S. 279

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