JOHN MURPHY AND JOHN DARRINGTON, ADMINISTRATORS OF WILLIAM MATHESON, DECEASED, PLAINTIFFS IN ERROR,
v.
ANGUS STEWART, ADMINISTRATOR OF ALEXANDER GRANT.
Supreme Court of United States.
*267 Ogden, for the plaintiffs in error.
Nelson, (attorney-general,) for the defendants in error.
*279 Mr. Justice STORY delivered the opinion of the court.
This is the case of a writ of error to the Circuit Court of the United States for the southern district of Alabama.
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 and 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, 30th Sept., 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." The due-bill was as follows: "Charleston, 25th February, 1820. Due to Grant and 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 and 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 and McGuffie to him, (Stewart,) and the due-bill to have been transferred *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 favourable 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;[(a)] but in contemplation of law the record itself is supposed to be removed from the court below.
*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 farthest 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 any one, 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. R. 376, there was a general verdict on a declaration consisting *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, Rep. 625. In Williams's Exec. v. Breedon, 1 Bos. and Pull. 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 Term 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. The Mayor, &c. of Lyme Regis, 6 Bing. R. 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. R. 334, S.C. in error, 7 Barn. and Cress. 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. and 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. R. 415, the Supreme Court of Massachusetts, after a general review of the authorities, allowed the verdict to be amended upon the judge's notes.[(a)]
We think then that the objection taken at the bar to the amendment and entry of the judgment is not maintainable, and that the *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 non-payment 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 *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 per cent. per annum.
NOTES
[(a)] 2 Tidd's Practice, 1141; 9th edition, 1828.
[(a)] See also 2 Tidd's Prac. 901, 9th ed. 1828.