Matheson's Administrators v. Grant's Administrator. 2 H. 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;' 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 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 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 12 Tidd's Practice, 1141; 9th edition, 1828. Matheson's Administrators v. Grant's Administrator. 2 H. 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, c. 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 of different counts, some of which were incon- [282] sistent 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, note. In Williams's Exec. v. Breedon, 1 Bos. & 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 I., the amendment might be made at any time. In Henley v. The Mayor, &c. of 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. & 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, 1 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 Matheson's Administrators v. Grant's Administrator. 2 H. 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.1 We think then that the objection taken at the bar to the amendment and entry of the judgment is not maintainable, and [*283] that the * 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 M'Guffie, nor that Grant was the survivor of them. We think otherwise. The first count in the amended record brought up on the certiorari is by Stewart, as administrator of Grant, and it states in the introductory part that he was the survivor of M'Guffie, late merchants, trading under the firm of Grant and M'Guffie; 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 M'Guffie 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 M'Guffie; 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, primâ 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 indorsed in blank by Grant and M'Guffie, that indorsement 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 See also 2 Tidd's Practice, 901, 9th edition, 1828. Stoddard v. Chambers. 2 H. 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 * capacity he elected to hold, as owner, or as ad- [ *284 ] ministrator. He has elected the latter; and the evidence is sufficient to establish that right, primâ 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. 6 H. 31, 260. SIMEON STODDARD, CURTIS STODDARD, DANIEL STODDARD, ANTHONY 2 H. 284. An act of congress confirming titles, excepted cases where the land had previously been located by any other person than the confirmee, under any law of the United States, or had been surveyed and sold by the United States. Held,-that a location, made on land reserved from sale by an act of congress, or a patent obtained for land so reserved, was not within the exception, and the title of the confirmee was made perfect by the act of confirmation, and without any patent, as against the prior patent, which was simply void; and this valid legal title enured at once to the benefit of an assignee of the confirmee. THE case is stated in the opinion of the court. Lawless and Ewing, for the plaintiffs. Jones, contrà. [*313] Stoddard v. Chambers. 2 H. * M'LEAN, J., delivered the opinion of the court. This case is from the circuit court of Missouri, and was brought here by a writ of error. The plaintiffs brought an action of ejectment for 350 arpens of land, situated near St. Louis. Their title was founded on a concession by Delassus, lieutenant-governor, to Mordecai Bell, the 29th of January, 1800. Bell conveyed the same to James Mackay, the 29th of May, 1804, and on the 26th of September, 1805, he conveyed to Amos Stoddard. A plat and certificate of the survey were certified and recorded by Antoine Soulard, as surveyor-general, the 29th of January, 1806. The above papers were presented to the recorder of the district of St. Louis, the 29th of June, 1808. And the claim was duly filed with the board of commissioners for their action thereon, who, on the 10th of October, 1811, rejected it. But afterwards on the 8th of June, 1835, the board decided that 350 arpens of land ought to be confirmed to the said Mordecai Bell, or his legal representatives, according to the survey. And on the 4th of July, 1836, an act of congress was passed, confirming the decision of the commissioners. The land was surveyed as confirmed. The plaintiffs proved the death of Amos Stoddard, before the suit was commenced, and that they are his heirs-at-law. The defendant was proved to be in possession of 48 acres and 84 hundredths of the land in controversy, 1 acre and 63 hundredths of which were in the [*314 ] * location and survey of Martin Coontz, and the residue within the patent of Peltier. The title of the defendant was founded on an entry made by Peltier of 160 acres of land, by virtue of a New Madrid certificate, on the 24th of October, 1816. A survey of the entry was made in March, 1818, and a patent to Peltier was issued the 16th of July, 1832. Possession has been held under this title since 1819. title was conveyed to the defendant. The On the 29th of May, 1818, an entry was made, which authorized the survey of Coontz, but no patent has been issued on it. The township in which the above tract is situated, was surveyed in 1817, 1818, and 1819, and was examined in 1822. Since 1804, a certain mound on the land has been called Stoddard's Mound. In 1823, the proclamation of the President, published at St. Louis, directed the lands in the above township to be offered at public sale. On the above evidence the court instructed the jury, 1. That the plaintiffs were not entitled to recover the land embraced in Peltier's patent. 2. That they were not entitled to recover the land embraced in Coontz's survey. |