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U.S. Supreme Court

Bank of the United States v. Moss, 47 U.S. 6 How. 31 31 (1848)

Bank of the United States v. Moss

47 U.S. (6 How.) 31




Where a declaration contained special counts upon promissory notes, and also the common money counts, although the jurisdiction of the court was not apparent upon the special counts, yet the money counts, sustained by evidence, might have been sufficient to sustain it, and this Court will presume such evidence to have been given if the record is silent upon the subject and if no objection was made to the jurisdiction in the progress of the trial.

Judgment having been rendered for the plaintiffs, it was not competent for the court below to strike out the judgment at the next term on the ground of supposed want of jurisdiction.

The power of a court over its records and judgments examined and stated.

In 1838, the two following notes were executed, viz.:

"$10,715 53/100 Brandon, March 17, 1838"

Nine months after 1 April, 1838, we, or either of us, promise to pay to Briggs, Lacoste & Co., or order, for value received, ten thousand seven hundred and fifteen 53/100 dollars, payable and negotiable at the Commercial Bank in Natchez.

"H. K. Moss"

"W. H. SHELTON, Sec'y"



"Endorsed, 'Briggs, Lacoste & Co.'"

"$10,876 92/100 Brandon, March 17, 1838"

"Eleven months after 1 April, 1838, we, or either of us, promise to pay to Briggs, Lacoste & Co., or order, for value received,

Page 47 U. S. 32

ten thousand eight hundred and seventy-six 92/100 dollars, payable and negotiable at the Commercial Bank in Natchez."

"H. K. Moss"

"W. H. SHELTON, Sec'y"



"Endorsed, 'Briggs, Lacoste & Co.'"

In March, 1840, the Bank of the United States brought suit in the Circuit Court of the United States for the Southern District of Mississippi, against Henry K. Moss, William H. Shelton, Robert A. Patrick, Charles Lynch, and Charles A. Lacoste. On the same day, a declaration was filed consisting of five counts, in which all the defendants were averred to be citizens of Mississippi. The first two counts were upon the notes, each count being upon one note. In the first count, the endorsement is thus averred:

"And the said Charles A. Lacoste, together with Charles Briggs and Louis Hermann, who are not sued in this action, not being citizens of this state, by the name and style of Briggs, Lacoste & Co., being partners in trade, using the name and style of Briggs, Lacoste & Co., to whom or to whose order the payment of the sum of money in the said note,"

&c., and in the second count, upon the other note, it is thus stated:

"And then and there delivered the same to said Briggs, Lacoste & Co., and the said Briggs, Lacoste & Co, of which firm the said defendant, Charles A. Lacoste, is a partner, the rest not being citizens of this state, to whom or to whose order the payment of the sum of money in the said note specified was by the same to be made, after the making of the said note, and before the payment of the said sum of money therein specified, to-wit, on the day and year last aforesaid, and at the district aforesaid, endorsed the same note in writing, by the name of Briggs, Lacoste & Co.,"


The other three counts in the declaration were the common money counts.

The defendants all appeared, and pleaded the general issue.

At November term, 1841, on motion of the plaintiffs' attorney, the suit was discontinued as to Lacoste, and a jury, being empanelled, found a verdict for the plaintiffs, assessing the damages at $26,485.66, for which sum judgment was entered up.

At May term, 1841, the defendants, by their counsel, moved the court to set aside the verdict and judgment rendered in the cause because the court had not jurisdiction, which motion was sustained. The verdict and judgment were set aside and the case dismissed for want of jurisdiction, to which decision the plaintiffs filed the following bill of exceptions.

Page 47 U. S. 33

"Be it remembered, that at the present term of this Court, the defendants in the above case came into court and moved the court to set aside the verdict and judgment in this case rendered at the last term of this Court, and to dismiss the suit for want of jurisdiction of the court; which motion is in the words and figures following:"

"The defendants by their attorney move the court to set aside the verdict and judgment rendered in this cause, and to dismiss the suit, because the court had not jurisdiction of the cause."

And thereupon came the plaintiffs and objected to said motion, but the court, without any evidence other than the record in said cause, sustained the said defendants' motion, and ordered said verdict and judgment rendered in this case at the last term of this Court to be set aside, and the suit dismissed, to which opinion of the court in sustaining said motion, and setting aside said verdict and judgment, and dismissing said suit, the plaintiffs by their counsel except, and pray that this their bill of exceptions be signed, sealed, enrolled, and made a part of the record in this cause, which is done accordingly.


Upon which exception, the cause came up to this Court.

Page 47 U. S. 36

MR. JUSTICE WOODBURY delivered the opinion of the Court.

In this case, at the November term of the Circuit Court for the Southern District of Mississippi, A.D. 1841, a verdict was found for the plaintiffs against the defendants for $26,485.66. Final judgment was then rendered for that sum.

At the ensuing May term, on motion of the defendants, the court set aside both the judgment and verdict, and dismissed the case for what it considered to be a want of jurisdiction.

To this the plaintiff excepted, and a writ of error is now before us to reverse that decision.

The first question is whether any want of jurisdiction appears on the record.

No evidence is reported, nor any defect apparent, which seems to raise any doubt concerning the jurisdiction, unless it be in the pleadings.

The declaration contained the usual money counts -- beside special ones on two notes, made to Briggs, Lacoste & Co., or their order, and by them endorsed to the plaintiffs.

The defendants pleaded that they did not promise as alleged, and a verdict was found against them, without any statement being given of the evidence laid before the jury or the court, though copies of the two notes named in the declaration are printed in the case.

The various questions which this state of the record presents, and which bear upon the jurisdiction, can, when analyzed and separately considered, be disposed of chiefly by adjudged cases, without any labored examination of the principles involved. The special counts on the notes standing alone might not be sufficient, under the 11th section of the Judiciary Act, to give jurisdiction to a circuit court of the United States, without an allegation that the promisees resided in a different state from the promisors. @ 4 U. S. 9 Wheat. 539; Dromgoole v. Farmers' & Merchants' Bank, 2 How. 243; and Keary v. Farmers' & Merchants' Bank of Memphis, 16 Pet. 95.

But it is very clear that the money counts aver enough to give jurisdiction to the court below over them, as they state an indebtedness and a promise to pay, made directly by the defendants to the plaintiffs. Mollan v. Torrance, 9 Wheat. 539; Bingham v. Cabbot, 3 Dall. 41.

It is well settled likewise that the notes would at the trial be evidence of money had even of an endorsee. 4 Es.Ca. 201; 7 Halsted, 141; 6 Greenl. 220; 12 Johns. 90; 8 Cowen 83; Wild v. Fisher, 4 Pick. 421; Webster v. Randall, 19 Pick. 13; Ramsdell v. Soule, 12 Pick. 126; Ellsworth v. Brewer, 11 Pick. 316; 16 Pick. 395; State Bank v. Hurd, 12 Mass. 172; 15 Mass. 69, 433; Page's Administrators v. Bank of Alexandria, 7 Wheat. 35; 2 Wm.Bl. 1269.

But they probably would not alone be sufficient, by the 11th section of the Judiciary Act, to give jurisdiction over them to a circuit court of the United States, under these money counts any more than the others, without additional evidence that the original promisees resided in a different state from the promisors. 20 U. S. 7 Wheat. 35 semb.

No decision, however, is made on this point, as from this record we cannot learn but that such additional evidence was given, or that other evidence than the notes was not introduced in support of the money counts.

It is not competent for this Court now to presume that neither of these kinds of evidence was offered beside the notes. The inference, on the contrary, is the other way, or the defendants would probably have objected to the jurisdiction at the trial, and the jury not found a verdict for the plaintiffs, or the court not have rendered judgment upon it.

In the next place, if such a state of things did happen as there having been no additional or other evidence, it is clear from the record that no advantage was taken of it till after final judgment, and at the following term of the court, and then by motion only.

But it was then too late, after final judgment and at the next term and by motion only to set aside the judgment and verdict on account of a supposed want of jurisdiction. At the next term, if no final judgment had yet been rendered, the court might from its minutes have had the verdict applied to the counts on which it was in truth found. 43 U. S. 2 How. 263; 2 Saund. 171b; Tidd's Pr. 901.

And if in this case it was found on the two special counts alone, the judgment on the verdict might then have been arrested

Page 47 U. S. 38

for want of proper averments in them conferring jurisdiction.

So it might have been arrested for a misjoinder of bad counts with good if the verdict had not been applied to the latter, but remained general. Hopkins v. Beedle, 1 Caines 347; 5 Johns. 476; 1 Chit.Pl. 236, 448; 1 Taunt. 212; 2 Bos. & Pul. 424; Cowp. 276; 3 Wils. 185; 2 Saund. 171 b; 3 Maul. & Selw. 110; Doug. 722.

But here jurisdiction did appear on three of the counts, and also final judgment had been rendered in November previous.

The action was not regularly on the docket at the new term in May following, when the Court undertook to set the judgment aside. The power of the Court over the original action itself, or its merits, under the proceedings then existing, had been exhausted -- ended. 35 U. S. 12 Pet. 492; 3 Bac.Abr. Error, T. 6; Co.Lit. 260a@; 7 Ves. 293; 12 Ves. 456; 1 Stor.P. 310; 1 Hoff.Pr. 559; 2 Smith Ch. 14; 9 Pet. 771; 3 John. 140; 9 John. 78; Kelly v. Kezir, 3 Marsh. 268.

This means the power to decide on it or to change opinions once given or to make new decisions and alterations on material points. A mere error in law of any kind supposed to have been rendered in a judgment of a court at a previous term is never a sufficient justification for revising and annulling it at a subsequent term in this summary way on motion. See cases ante; 2 Gall. 386; Cameron v. McRoberts, 3 Wheat. 591; 2 Haywood 237; Skinner v. Moor, 2 Dev. & Bat. 138; Wash. Bridge Comp. v. Stewart, 3 How. 413; and Jackson v. Ashton, 10 Pet. 480; Lessee of Hickey v. Stewart, 3 How. 762; Henderson v. Poindexter, 12 Wheat. 543; Elliot v. Piersol, 1 Pet. 340; Wilcox v. Jackson, 13 Pet. 511; Rose v. Himely, 4 Cranch 241.

We would not be understood by this to deprive a court, at a subsequent term, of power to set right mere forms in its judgments. 16 U. S. 3 Wheat. 591; 28 U. S. 3 Pet. 431; 25 U. S. 12 Wheat. 10; Lawrence v. Cornell, 4 Johns.Ch. 542. Or power to correct misprisions of its clerks. The Palmyra, 12 Wheat. 10; Hawes v. McConnel, 2 Ohio 32; 1 Greenl. 375; Com.Dig. Amendment, T. 1. The right to correct any mere clerical errors, so as to conform the record to the truth, always remains. Sibbald v. United States, 12 Pet. 492; Newford v. Dorsey, 2 Wash.C.C. 433; 6 Watts 513; 8 Watts 424; 1 Wendell 101; 4 Wendell 217; 1 Bibb, 324; 2 Bibb, 88; Weston's Case, 11 Mass. 417; The Bank v. Wistar, 3 Pet. 431. Irregularities also in notices, mandates, and similar proceedings can still in some cases be amended. Ex Parte Crenshaw, 15 Pet. 123.

Page 47 U. S. 39

Indeed, any amendments permissible under the statutes of Jeofails may be proper at subsequent terms, 2 Tidd's Pr. 917; 2 Arch. Pr. 202, 243, and at times even after a writ of error is brought. 43 U. S. 2 How. 243; 3 Johns. 95; Poph. 102; Pease v. Morgan, 7 Johns. 468; Cheetham v. Tillotson, 4 Johns. 499; 1 Johns.Cas. 29; 2 Johns. 184; 1 Bing. 486; Douglass v. Bean's Executors, 5 Bing. 60. So it is well settled that at a subsequent term, when the judgment had before been arrested, an amendment may be made to apply the verdict to a good count if another be bad and the judge's minutes show that the evidence applied to the good count. Matheson's Adm. v. Grant's Adm., 2 How. 282, and cases cited there.

So a mistaken entry of a mandate, in a case where the parties were not at all before the court, may be revoked at a subsequent term, the hearing having been irregular and a nullity. @ 40 U. S. 14 Pet. 147. But no cause of this kind appears here in the proceedings, and nothing else appears to justify the court in going back to a final judgment of a previous term and summarily setting it aside for an error in the law or the facts, and dismissing the whole case from the docket.

The only relief for errors in law in such cases is usually by new trial, review, writ of error, or appeal, as either may be appropriate and allowable by law, or by some other mode specially provided by statute; where, for instance, a judgment has occurred at some previous term by default, through accident or some circumstance, which clearly entitles the party to redress. 37 U. S. 12 Pet. 492; Jenkins v. Eldridge, 1 Woodb. & Minot 65, and cases cited; Anthony v. Love, 3 Ohio, 306; Bennett v. Winter, 2 Johns.Ch. 205; 3 Marsh. 268; Southgate v. Burnham, 1 Greenl. 375.

Beside these remedies, judgments entered up by fraud may, perhaps, on due notice, by scire facias, or otherwise, be vacated at a subsequent term by the same court, or if offered in evidence be deemed a nullity, should fraud be clearly proved to have taken place. 2 Roll. Abr. 724; 2 Bac.Abr. Error, T. 6.

But the present judgment was neither fraudulent nor void on its face, nor even voidable. Had it been rendered on the special counts alone, it might have been voidable by a writ of error, for not alleging jurisdiction in the pleadings. See ante, 43 U. S. 2 How. 243; 6 U. S. 6 Cranch 267; 14 U. S. 1 Wheat. 354; 23 U. S. 9 Pet. 290; 37 U. S. 12 Pet. 491, 37 U. S. 343; 40 U. S. 15 Pet. 84.

Without going further, then, into the reasons or precedents against the course pursued in the court below, the last judgment there, on the motion, must be

Reversed, and the case be reinstated as it stood before.


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 Mississippi, 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 on the motion dismissing this case be and the same is hereby reversed, with costs, and that this cause be and the same is hereby remanded to the said circuit court with directions to reinstate this case as it stood in that court before the said judgment dismissing the case.

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