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
MR. JUSTICE STORY delivered the opinion of the Court.
The original action was assumpsit brought by Stewart (the
defendant in error) as administrator of Alexander Grant, who was
the surviving partner of the firm of Grant & McGuffie, against
Murphy and Darrington as administrators of Matheson upon a certain
note and due bill made and signed by Matheson in his lifetime. The
note was as follows:
"Charleston, 30 Sept., 1818. Four months after date I promise to
pay Grant & McGuffie, or order, three thousand four hundred and
twenty-eight dollars eighteen cents, value received."
The due bill was as follows:
"Charleston, 25 February, 1820. Due to Grant & McGuffie, or
bearer, on demand, three hundred and forty-four dollars sixty-six
cents, with interest from date."
The note was endorsed in blank, "Grant & McGuffie."
The declaration contained two counts. The first count is by
Stewart as administrator, upon both instruments, and upon promises
made by Matheson in his lifetime, and by his administrators since
his decease, to pay him (Stewart) as administrator. The second is
upon both instruments, stating the note to have been endorsed by
Grant & McGuffie to him (Stewart), and the due bill to have
been transferred
Page 43 U. S. 280
to him by delivery. So that in legal effect he claimed in the
first count as administrator, and in the second in his own personal
right. At the trial (for it is unnecessary to state the pleadings),
the jury found a general verdict for the plaintiff, upon both
counts, at the November term of the court, 1840. And at the same
term, a motion was made in arrest of judgment for the misjoinder of
the counts, which motion was sustained, and thereupon it was
ordered by the court that the judgment be arrested. At the November
term of the court, 1841, a motion was made to set aside the order
in arrest of judgment, and for leave to amend the verdict so that
the same might be entered upon the first count, and a
nolle
prosequi entered upon the other count. In support of this
motion, an affidavit was made by the plaintiff's counsel, that the
only evidence offered at the trial by the plaintiff was the
deposition of Chapman Levy, Jacob Axon, and _____ McKenzie, and the
note and due bill which were on the files of the court, 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. Upon
this evidence after notice to and hearing the counsel for the
defendants, who offered no evidence in opposition to the motion,
the court made an order, vacating the order in arrest of judgment,
and allowing the verdict to be amended by entering the same on the
first count, and that judgment be entered upon that count
nunc
pro tunc for the plaintiff. Judgment was accordingly entered
thereon, and from that judgment the present writ of error has been
brought.
The main question which has been argued is whether the court had
authority to make the amendment at the time and under the
circumstances stated in the record. It is observable that there was
no judgment in the present case originally entered, that the
plaintiff takes nothing by his writ,
non obstante
veredicto, but a simple order passed arresting the judgment,
which suspended all further proceedings until the court should put
them again in motion, but still left the cause pending in the
court. It is a case, therefore, in a far more favorable position
for the exercise of the power of amendment, than it would have been
if final judgment had passed against the plaintiff, or if judgment
had passed for the plaintiff, and a writ of error had been brought
to reverse it; for in the latter case, not only is the writ of
error deemed in law a new action, [
Footnote 1] but in contemplation of law the record itself
is supposed to be removed from the court below.
Page 43 U. S. 281
And first, as to the time of making the amendment. It is said
that it should have been either at the term when the order for the
arrest of judgment was made, or, at the furthest, at the next
succeeding May term of the court, and it was too late to make it a
whole year afterwards. But there is no time absolutely fixed within
which such an amendment should be moved. All that the court
requires is that it should be done within a reasonable time, and
when no such change of circumstances shall have occurred as to
render it inconvenient or inexpedient. Nothing is more common than
motions to amend the record after a writ of error has been brought
-- nay, after a writ of error has been argued in the court above,
and sometimes even after judgment in the court of error, pending
its session. Especially in cases of misjoinder of counts, which are
incompatible with each other, as well as in cases where there are
several counts, some of which are bad and some good, and a general
verdict given for the plaintiff, such applications, when made
within a reasonable time, are usually granted after error brought
and the verdict allowed to be amended so as to be entered upon the
good counts, or upon the counts not incompatible with each other.
This is most usually done upon the judge's notes of the evidence at
the trial, establishing upon what counts the evidence was in fact
given or to which it was properly addressed or limited. But it may
be done upon any other evidence equally clear and satisfactory,
which may be submitted to the consideration of the court. In the
present case, we know from the most authentic sources contained in
the record itself, and not disputed by anyone, the whole evidence
which was given at the trial. The case, therefore, falls directly
within the range of the principles above stated. The practice is a
most salutary one, and is in furtherance of justice and to prevent
the manifest mischiefs from mere slips of counsel at the trial,
having nothing to do with the real merits of the case. The
authority to allow such amendments is very broadly given to the
courts of the United States by the 32d section of the Judiciary Act
of 1789, ch. 20, and quite as broadly, to say the least, as it is
possessed by any other courts in England or America; and it is
upheld upon principles of the soundest protective public
policy.
Without citing the authorities at large, which are very numerous
upon this point, it will be sufficient to state a few only, which
are the most full and direct to the purpose. In
Eddowes v.
Hopkins, 1 Doug. 376, there was a general verdict on a
declaration consisting
Page 43 U. S. 282
of different counts, some of which were inconsistent in point of
law, it was held that as evidence had only been given upon the
consistent counts, the verdict might be amended by the judge's
notes at the trial. The same point was decided in
Harris v.
Davis, 1 Chitty 625. In
Williams' Exec. v. Breedon, 1
Bos. & P. 329, where a general verdict was given on two counts,
one of which was bad, and it appeared by the judge's notes that the
jury calculated the damages in evidence applicable to the good
count only, the court allowed the verdict to be amended and entered
on the good count only, though evidence was given applicable to the
bad count also. In
Doe v. Perkins, 3 T.R. 749, the court
allowed the verdict to be amended after error brought and joinder
in error by striking out certain words from the postea. An
objection was on that occasion taken that the amendment could not
be made after the expiration of one term after the trial. But the
court said that there was no foundation for this objection, for
that, according to the practice of amending by the judge's notes,
which was of infinite utility to suitors, and was as ancient as the
time of Charles the First, the amendment might be made at any time.
In
Henry v. Mayor Lyme Regis, 6 Bing. 100, a verdict had
been taken by consent on two counts, and upon application the court
amended the postea, by entering it in one count to which the
evidence applied, there being in fact but one cause of action,
although the judge, who presided at the trial, declined to
interfere. In
Richardson v. Mellish, 3 Bing. 334,
S.C. in error, 7 Barn. & C. 819, where a general
verdict was given on a declaration, some of the counts of which
were bad, the court allowed the postea to be amended, and entered
up judgment upon a single count after argument in error, and the
court in error sanctioned the proceeding. In
Harrison v.
King, 3 Barn. & Ald. 161, there was a general verdict for
the plaintiff, and an application was made to the court to amend
the verdict on the judge's notes after the lapse of eight years,
and after the judgment had been reversed upon error; but the court
refused it upon the ground of the long delay. In
Clarke v.
Lamb, 8 Pick. 415, the Supreme Court of Massachusetts, after a
general review of the authorities, allowed the verdict to be
amended upon the judge's notes. [
Footnote 2]
We think then that the objection taken at the bar to the
amendment and entry of the judgment is not maintainable, and that
the
Page 43 U. S. 283
court acted within its rightful authority and jurisdiction in
the allowance thereof.
Another objection, rather suggested than insisted on, is that
there is no profert of the letters of administration. Whether that
would constitute any objection whatsoever in the State of Alabama
is a matter purely of local practice and proceedings. It is well
known that in many states of the union, no profert of such letters
is ever made, as, for example, in Massachusetts and other New
England states. But the objection, if it has any foundation, is
undoubtedly cured by the verdict.
Another objection is that the first count does not sufficiently
allege a partnership between Grant and McGuffie, nor that Grant was
the survivor of them. We think otherwise. The first count in the
amended record brought upon the certiorari is by Stewart, as
administrator of Grant, and it states in the introductory part that
he was the survivor of McGuffie, late merchants trading under the
firm of Grant and McGuffie; and alleges promises by Matheson to
them in their lifetime, and by Matheson in his lifetime, and by his
administrators, to the plaintiff, to pay the sums of money stated
in the count, and alleges as a breach the nonpayment thereof,
either to Grant and McGuffie in their lifetime or to the plaintiff
since their decease. The count certainly is not drawn with entire
technical precision and accuracy, but after verdict it must be
taken to be sufficient for all the purposes of substantial
justice.
But then it is said that if the first count is good, still the
evidence offered at the trial was not sufficient to establish any
partnership between Grant and McGuffie, and if the evidence did
establish any case, it was a case within the scope of the second
count, and not of the first. We think neither branch of the
objection is maintainable. There was certainly evidence enough to
go to the jury on this point, and the very instrument on which the
suit was brought,
prima facie, imported a partnership at
least in these transactions; and the jury, by their verdict, must
be presumed to have found the fact in the affirmative. In the next
place, although the note was endorsed in blank by Grant and
McGuffie, that endorsement was no proof that the interest on the
same had passed to Stewart, as alleged in the second count, and the
possession of the due bill by Stewart was no necessary proof that
he held it as owner in his own right. For aught that appears, he
may have held them both solely in his capacity as administrator;
and he had a right, and the sole right, to say in which
Page 43 U. S. 284
capacity he elected to hold, as owner, or as administrator. He
has elected the latter; and the evidence is sufficient to establish
that right,
prima facie. Besides, it can be of no concern
to the plaintiff in error on which count the verdict is taken, for
in either case it is equally a good foundation for a valid judgment
against him, to the extent of the sums due thereon.
There is yet another view of this matter. The question of the
amendment was a question of discretion in the court below upon its
own review of the facts in evidence, and we know of no right or
authority in this Court upon a writ of error to examine such a
question, or the conclusion to which the court below arrived upon a
survey of the facts, which seem to us to have belonged
appropriately and exclusively to that court.
Upon the whole, in our opinion there is no error of the court
below in the amendment and proceedings complained of, and the
judgment is therefore
Affirmed with costs.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of Alabama, and was argued by counsel. On consideration
whereof, it is now here ordered and adjudged by this Court, that
the judgment of the said circuit court, in this cause be, and the
same is hereby affirmed with costs and damages at the rate of six
percent per annum.
[
Footnote 1]
2 Tidd's Practice, 1141, 9th edition 1828.
[
Footnote 2]
See also 2 Tidd's Prac. 901, 9th ed., 1828.
