author: Mr. Justice NELSON

text:
    William Bailey, Plaintiff in error, v. William B. Dozier.
    Where a bill of exchange is presented for acceptance or payment, which is refosed, it is sufficient if the officer who presents it makes a note at the time of the facts which occurred on presenting the bill. The formal protest may be drawn up afterwards, at the convenience of the notary.
    Under the laws of Mississippi, a protest is not essential to enable the indorsee of an inland bill of exchange to recover the amount of it. The statute of Mississippi is similar to the English statutes of 9th and 10th of William III., and 3d and 4th of Anne,' and must receive the same construction with them.
    Before those statutes, the indorsee of an inland bill had a right to recover the amount of it from the drawer. This right was not taken away by them; but they gave art additional right to interest and damages. The common law right remains.
    If a plea to the jurisdiction and a plea of non assumpsit be put in, and the issue be made up on the latter plea only, no notice being taken of the former, and upon this state of the pleadings the cause goes on to trial, the plea to the jurisdiction is considered as waived.
    Although the declaration began with an averment that the drawer and indorser were citizens of the same State (which, of course, would oust the jurisdiction of the Circuit Court), yet as it afterwards averred that the indorser, who was also the payee, was an alien and citizen’ of Texas, this was sufficient to maintain the jurisdiction.
    This case was brought up; by writ of error, from the Circuit Court of the United States for the Southern District of Mississippi.
    The facts were these.
    On the 18th of January, 1838, the following inland bill was drawn. .
    <$ 2,670.

      Paulding, 18th January, 1838.
    Twelve months after date of this my first and only bill of exchange, pay to the order of John D. Fatheree two thousand six hundred and seventy dollars, for value received, and place the same to account of your ob’t servant,
    Will. B. Dozier.
    Mr. Pierson Lewis,

      Jackson, Mississippi.

    Indorsed, — J. D. Fatheree.
    Accepted, — Pierson Lewis.
    Being indorsed by Fatheree and accepted by Lewis, it passed into the hands of Bailey, the plaintiff in error.
    On the 21st of January, 1839, when the bill became due, it was presented and protested for non-payment, under the circumstances which will presently be stated.
    In April, 1841, Bailey brought suit in the Circuit Court of the United States against Dozier and Fatheree, who were both alleged in the writ to be citizens of Mississippi, Bailey being stated to be a citizen of Virginia. The" declaration commenced with stating that Dozier and Fatheree were both citizens of Mississippi, but afterwards, in reciting the bill,’ said, “ and then and there requested the said Lewis to pay, twelve months after the date of said bill of exchange, to John D. Fatheree, who is an alien and resident of the republic of Texas,” &c. The declaration contained also counts for money “lent and advanced,” “páid, laid out, and expended,” and “had and'received.”
    To this, the defendant pleaded two pleas. The first was as follows: —
    “ And .the said defendant, William B. Dozier, in his own proper person, comes and says, that this court ought not to have or take further cognizance of the action aforesaid, as to him, said Dozier, because he says that the- said bill of exchange, in the plaintiff’s declaration mentioned, was drawn in the State of Mississippi, to wit, at Paulding, in Mississippi, payable at -Jackson, in' the said State of Mississippi, and that the drawer and indorser and acceptor thereof were, and yet are, citizens and resident in the State of Mississippi ; and said bill is not a foreign bill of exchange; and this the said William B. Dozier is ready to- verify ;, wherefore he prays judgment, whether this court can or will take further cognizance of the action aforesaid.
    “ And for further plea in this behalf, the said William B. Dozier says, that this court ought not to have or take further cognizance of this action, because he says that the said William Bailey, the plaintiff, is a citizen of the State of Mississippi, to wit, of the county of Rankin, in said State, and-this he is ready to verify; wherefore he prays judgment, whether, this court can or will take further cognizance of the action aforesaid.”
    The second plea was .non assumpsit.

    The record showed that the plaintiff joined issue upon the last plea, without taking any notice of the first.
    In May, 1843, the cause went to trial, upon this state of the pleadings, after, a discontinuance had been entered as to Fatheree, when the jury, under instructions given by the court, found a verdict for the defendant.
    The bill of exceptions taken by the plaintiff, after reciting the bill and protest Ity David H. Dickson, calling himself a justice of the peace and ex officio notary public, proceeded thus: —
    “The plaintiff then introduced David H. Dickson, the notary, as a witness, who, being first duly sworn, stated on oath, that, on the day the bill fell due, he went to the Union Bank in Jackson, and demanded payment of said bill of the teller of said bank, and was answered by him that there were no funds in the bank to pay said bill. Witness did not know where said Pierson Lewis, the acceptor, lived; but on coming out of the bank a person was pointed out to him as said Lewis, the acceptor of- the bill. Whereupon witness demanded payment of said-Lewis, who answered that he. could not pay the spae. Whereupon witness protested said bill for non-payment, as well against the acceptor as all other parties to the same, and on thát day deposited in the post-office at Jackson notice , of the dishonor of said bill, in season to go out by the next mail, directed to Paulding, Mississippi, for said Will. B, Dozier, the defendant,,which is the residence and post-office of said: Dozier, who is the drawer of said bill, advising him of the nonpayment thereof by the acceptor, and that the holder looked to him for payment.
    “On his cross-examination, witness stated, that after he left the bank a person was pointed out to him by the plaintiff as Pierson Lewis, of whom he made demand of payment, which was refused; that the protest now attached to said bill of exchange is'not the original protest made out by him on the day of said above-named demand..
    “ That on making demand of said bill,’ as above stated, he made out a protest and attached the same to the bill by wafer, and delivered the bill and protest to the plaintiff; that after-wards the plaintiff sent a messenger to him, stating that said protest would- not do, and requesting another; and thereupon witness tore the bill away from it, and made out another, differing. from' the first, and delivered it, also annexed to said bill, to said messenger. That near a year afterward the plaintiff applied, in person, to said witness, and stated that said second protest was also materially defective, and requested witness to make out another; and witness then again separated said bill from said second protest, and máde out a third protest, and after wafering the bill thereto, delivered thé said bill and protest to the said plaintiff, which last is the protest now read to the jury, and the two rents or mutilations on said bill designate the parts ’at which it was wafered to each of said protests.
    “ That the original protest' differed from the second, and the third from both the preceding.
    “ Whereupon the defendant, by attorney, moved the court to exclude said bill of exchange from the jury for the want of valid protest; which motion, after argument, the court sustained, and instructed the jury that the plaintiff could not sustain his action on the bill of exchange, unaccompanied by a protest.
    “ To which plaintiff’s counsel excepted, and tendered this bill of exceptions before thejury retired from the box,, and prayed that the same may be signed, sealed, and made a part of the record in this cause; which is done accordingly.
    “S. J. Gholson. [seal.]”

      Upon this bill of exceptions the case came up to this court.
    It was argued by Mr. Bibb, for the plaintiff in error, and Mr. Crittenden, for the defendant in error.

      Mr. Bibb, for the plaintiff in error, made four points: —
    1st. That the judge erred in excluding the notarial protest from the jury.
    . 2d. The court erred in the instruction given to the jury.
    3d. The judge erred in taking upon himself to decide the facts testified by the witness, instead of leaving it to the jurors to respond to the facts properly within their province.
    4th. • That upon the evidence, the plaintiff was entitled to verdict and judgment; and that the decision of the court, as certified in the bill of exceptions, was erroneous.
    No protest of the bill, which was an inland bill, was necessary to enable the plaintiff to sustain his action for the sum named in the bill. Brough v. Parkins, 2 Ld. Ray'm. 992; Chitty on Bills (9th Lond. ed.), 334, 335, 464, 465; 3 Kent’s Com. 93, 94.
    The proof of the demand of payment, of the refusal, and of notice to the defendant of the dishonor of the bill, was sufficient. Chitty on Bills (9th Lond. ed.), 335, 658, 659; Townsley v. Sumrall, 2 Peters, 170.
    . The judge gave to the certificate of protest of an inland bill, made by the notary residing in the State and district wherein the suit was brought and trial had, a magnified dignity, a power of diction, self-sufficient and indispensable, which the law did not allow to a notarial certificate in such a case.
    In Townsley v. Sumrall, the Supreme Court of the United States said: —■ “ It is admitted, that, in respect to foreign bills of exchange, the notarial certificate of protest is of itself sufficient proof of the dishonor of a bill, without any auxiliary evidence.” “But where the parties reside in the same kingdom or country, there is not the same necessity for giving entire verity and credit to the notarial protest. The parties may produce the witnesses upon the stand, or compel them to give their depositions. And, accordingly, even in cases of foreign bills, drawn upon, and protested in, another country, where the suit is brought, courts of justice'sitting under the common law require that 'the notary himself should be produced, if within the reach of process, and his certificate is not per se evidence. This was so. held by Lord Ellenborough in Chesmer v. Noyes, '2 Campbell’s R. 129.” Townsley v. Sumrall, 2 Peters, 179, 180.
    The plaintiff, Bailey, produced the notary, David H. Dickson, as a witness. His statements, upon oath, in chief and upon cross-examination, proved every fact, — of presentation of the bill at the proper time for payment, the demand of payment thereof madd of the acceptor, his refusal to pay, the protest for non-payment, and the notice of the dishonor of the bill sent- to the drawer by the first mail after the dishonor of the bill.
    When the notary so testified in open court, at the trial, of what importance was the notarial certificate made by him ex parte ? That the notary made three or three dozen notarial certificates of protest is immaterial. In what respect did the first, second, and third certificates of the notary differ one from another ? ' It is not pretended that they were contradictory the .one to another, nor that either was confrádictory to the evidence given by the notary to the court and jury when on his oath. In such case, the credibility and weight of the evidence would have been a question of fact proper for the jury to try, and not a' question of law to the court.
    Supposed omissions were the subjects of the several notarial certificates, not falsehoods.
    The evidence, as given at the trial, was sufficient to maintain the action so brought against the drawer of the bill of exchange; and the instruction of the court to the jury was erroneous.

      Mr. Crittenden, for the defendant in error,
    said that the only question in the case related to the sufficiency of the evidence of protest offered\by the plaintiff.
    By the laws of the State of Mississippi, a protest was necessary and indispensable to the plaintiff’s right of recovery. Statute Laws of Mississippi, page* 372, 8th section, and page 375, section 17, &e. Offet v. ¥iek, Walker’s Reports (Mississippi), 100.
    The instrument offered in evidence as such was no .legal or valid protest, because the justice of the peace (David H. Dickson) who made it had no authority so to do, it not appearing that there vas no notary public in Jackson at the time ready to act, and his authority, by law, being only to make protest ■for- want or in default of a notary public. Statute Laws of Mississippi, section 8,' page 373.
    If Dickson, as a justice of the peace, was, Under the circumcumstances, authorized to protest, the instrument offered in ■ evidence as a protest, made out near a year after the transaction, cannot be taken or regarded as an authentic or legal instrument, admissible as evidence, especially as it appears that it' was neither the first nor second protest made in reference to the same occasion.

      It. would be subversive of. the security and certainty of commercial interests and dealings in, such, transactions, if such. an. instrument as that offered in evidence in this case , should be received and allowed the. effect of a. legal protest. The first protest, made at the time* of the alleged demand and refusal of payment, is suppressed. A second edition, of it, made out some time after, is also suppressed. And the one now offered in evidence is the third edition, fabricated about one year after the transaction. The proof is,.also, that each of these differed from the other.. It is impossible, as it. seems to me, that such an instrument, can:, be regarded as a. protest, or admitted in evidence, as such.
    On both grounds,.— 1st. That Dickson had no authority to protest; and 2cL That if he had,, the instrument offered in evidence was no protest, — it seems clear that , the instruction of the court .was correct, and that therefore the judgment ought to be affirmed.
   Mr. Justice NELSON

delivered the opinion of the court.

This is a.writ. of error to the Circuit Court of. the United State? held by the district, judge in. and for the Southern District of Mississippi.

The suit was, brought on an inland bill of exchange by the indorsee against the drawers, and resulted, in the court below, in. a verdict for the defendant on an objection taken to the validity of the protest'.

The statute of Mississippi provides for protesting inland bills in case of non-acceptance, or of non-payment by the drawee, after due presentment, in like manner as in case of foreign bills of exchange; and allows five per cent, damages on the amount for which the bill is drawn.. (Howard & Hutchinson. Statutes of Miss., pp. 372, § 8 ; 375, § 17 ; and 376, § 20.).

On the trial, the notary was called as a witness by the plaintiff, and proved the presentment of the bill at maturity, demand of- payment, and refusal, and notice to the drawers. And further, that he drew up the protest in form at the time and delivered it to the holders, but that, on account pf some alleged defect,-. which is not stated in- the bill of exceptions, it was returned to him, and a second one made out, and delivered, which was also subsequently returned, and a third drawn up, which Was the protest offered in evidence. It was made -out nearly a . year after the presentment.

The court below decided that ■ the protest was invalid, and instructed the jury that the plaintiff could not recover, unless the bill had been duly protested according to. the requirement of the statute. Whereupon a verdic.t was rendered for the der fendant.

The bill was presented and the protest made out by a jus-1-tice of the peace, ás a notary ex officio ; and on the argument, the ruling of the ccurt was sought to be sustained, on the ground, that the power of this officer to protest bills extended only tOj cases where the notary was absent or could not be procured. But, on looking into the laws of Mississippi, it was found that a subsequent statute had given the power to this officer in all cases, without any qualification, and the point was given up. (How. & Hutch., p. 430, § 24.)

The ground of objection, therefore, is narrowed down to the time when, and the circumstances under which, the notarial protest was drawn up, in form. And on looking into, the cases and books of authority on the subject, it will be found, that, if the bill has been duly presented for acceptance, or payment, and dishonored, and a minute made, at the time, of the steps taken, which is called noting the bill, the protest may be drawn up in form afterwards, at the convenience of .the notary. And it has been held, if drawn up at any time'before the trial, it will be sufficient. (Chitty on Bills, 334, 436, and cases. Ed. 1842.)

The minute contains a brief record of1 the facts which transpired on. presenting-the bill, and the protest, as subsequently made out, is but an extension of them in the customary form. The time of the extension, therefore, would seem to be-of no great importance.

For the sáme reason, if a mistake, should occur, no great danger need be apprehended if the notary is permitted to correct if, provided the regular stéps have been taken, and noted, to charge the parties. The amendment would not be made from memory, or recollection, but from a written memorandum of ithe facts.

. But, without pursuing this view of the case further, a decisive ground against the ruling of the court below is, that a protest of the bill was not essential to enable the plaintiff to recover.

The statute of Mississippi is taken, substantially, from the 9 and 10 Vm. 3, ch. 17,,amended by the 3 and 4 Anne, ch. 9, under which it has always been held by the courts in England that the action at common law was not thereby taken away ; but that an additional remedy was given, by which the holder could recover interest and damages on an inland bill in cases where he was not entitled to them at common law- And that if he chose, to waive the benefit of the statute, he might still recover the amount due on the bill, by giving the customary proof of default and notice. (2 Ld. Raym. 992 ; S. C., 1 Salk. 131; S. C., 6 Mod. 80; 2 Barn. & Ald. 696 ; Chitty on Bills, 466.)

The act of Mississippi is not more explicit and positive in its terms, in respect to the duty of protesting., than that of the 9 and 10 Wm. 3, as will be seen on a comparison of the two acts, and should receive a similar interpretation. It'follows,-therefore, from this view, as the plaintiff did not claim the five per cent, damages given by the act, he should have been allowed to recover the amount of the. bill, principal and interest, on the testimony of the notary alone, independently of the written protest.

It appears from the record, that the defendant put in two pleas to the jurisdiction in the court below, for the want of proper parties; and also the plea of non assumpsit. To the latter, the similiter was added, upon which issue the cause went down to trial. No notice was taken of the pleas to the jurisdiction. •

It is suggested that this affords ground of error on the record.

The plea of non assumpsit in bar of the action operated as a waiver of the pleas to the jurisdiction, which doubtless furnishes the. reason why no notice was afterwards taken of these pleas by either party. 3 Johns. 105; 6 Bac. Abr. tit. Pl. & Pl., let. a, pp. 186, 187 ; Gould, Pl. ch. 5, § 13.

They were virtually abandoned by the defendant.

It was alsp suggested, that it appeared from the declaration that Fatheree, the payee of the bül, was a citizen of Mississippi, and that the plaintiff, deriving title from him, though a citizen of Virginia, could not maintain the action, for want of jurisdiction within the eleventh section of the Judiciary Act.

The answer to the suggestion is,.that the fact upon which it-is founded is not sustained by the record. The suit was brought, originally, against Dozier, and Fatheree; the drawer and payee, indorsers jointly, who are described in the commencement of the declaration as citizens of the State of Mississippi. But in a subsequent part of the declaration it is averred, that Fatheree, at the time the bill was drawn, and.also at the time of .its transfer to the plaintiff, was an alien, and rest-dent of Texas.

The suit was discontinued as to Fatheree before the trial, which left it between the plaintiff and the defendant alone.

The plaintiff being a citizen of Virginia, and deriving title through a person competent to maintain a suit in the Circuit-Court against the defendant, that court properly took jurisdiction of the case.

In every view taken of the case, we think the court below erred, and that the judgment should be reversed.

Judgment reversed, with venire de novo by the court below.

Order.

This cause came on to be heard on the transcript of the recv ord from the Circuit Court of the United States for the Southerm 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 iii this cause 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 award a venire facias de novo.


source: Caselaw Access Project

author: Mr. Justice WOODBURY

license: Public Domain

text:
    The President, Directors, and Company of the Bank of the United States, Plaintiffs in error, v. Henry K. Moss, William H. Shelton, Robert A. Patrick, and Charles Lynch, Defendants.
    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 ibr 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.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the Southern District of Mississippi.
    In 1838, the two following notes were executed, viz.: —
    $ 10,715f$r.

      Brandon, March 17th, 1838.
    Nine months after 1st April, 1838, we, or either of us, promise to pay to Briggs, Lacoste, <fc Co., or order, for value received, ten thousand seven hundred and fifteen -n& dollars, payable and negotiable at the Commercial Bank in Natchez.
    H. K. Moss,
    W. H. Shelton, Sec'ty.

    R. A. Patrick,
    Charles Lynch.
    Indorsed, “ Briggs, Lacoste, & Co.”
    $ 10,876-^r.

      Brandon, March 17th, 1838.
    Eleven months after 1st April, 1838, we, or either of us, promise to pay to Briggs, Lacoste & Co., or order, for value received, ten thousand eight hundred and seventy-six dollars, payable and negotiable at the Commercial Bank in Natchez.
    (Signed)
    H. K. Moss,
    W. H. Shelton, SecHy.

    R. A. Patrick,
    Charles Lynch.
    Indorsed, 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 indorsement 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, indorsed the same note in writing, by the name of Briggs, Lacoste, &■ Co.,” &c.
    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 impanelled, 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.'

      “ 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 apart of the recor$ in,this cause, which is done accordingly.
    “J. McKinley, [seal.]”
    Upon which exception, the cause came up to this court.
    The cause was argued by Mr. G. M. Wharton and Mr. Sergeant, for the plaintiffs in error, no counsel appeaxiilg for the defendants in error.
    The error assigned is, that the court below erred in setting aside, at May term, 1842, the judgment rendered at November term, 1841, in favor of the plaintiff.
    The judgment was set aside at a term-subsequent to that at which it was rendered ; and this was done for alleged want of. jurisdiction in the court below over the cause of action. The defect of jurisdiction was alleged to arise from the first count of the narration not averring that one of the payees and indorsers of the note, Lacoste, was a citizen of some other State than Mississippi.
    That the discontinuance of the suit as to Lacoste was not erroneous, and was a local practice sanctioned by this court, they cited McAfee v. Dóremus, 5 How. 53. See How. & Hutch. Miss. Dig. 596, for the law of that State. The remaining three counts in the narration were the common money counts, and in them there was no pretence of error.
    The first question arising upon the record was as to the power of the' Circuit Court to set aside its former judgment. They contended that it was a general rule, that the same court which enters up a judgment cannot set it aside, at a subsequent term, for mors of law. This would be tantamount to the power of reversing its own judgment.
    The power of setting aside or opening judgments for fraud, irregularity, or misprision df the clerk, they asserted to be a different power.
    As authority for their view of the first question, they cited and relied upon the following cases : —
    In the courts of the United States, — Assessors of Medford v. Dorsey, 2 Wash. C. O. R. 433 ; The Avery, 2 Gall. 386 ; Cameron v. McRoberts, 3 Wheat. 591; Jackson v. Ashton, 10 Peters, 480. Ex parte Crénshaw, 15 Peters, 119, they said was not a decision the other way, because there the Supreme Court merely revoked its mandate, and declared its former judgment a nullity, as the cause had never been before it. Washington Bridge Co. v. Stewart, 3 How. 413; Jenkins v. Eldridge, 1 Woodb. & Minot, 61, were also cited.
    In the Supreme Court of Pennsylvania, — Catlin v. Robinson, 2 Watts, 373 ; Stephens v. Cowan, 6 ib. 511; Gallup v. Reynolds, 8 ib. 424.

      Jn New York, — Barheydt' v. Adams, 1 Wend. 101; Soul-den v. Cook, 4 ib. 217.
    In North Carolina, — Anon., 2 Haywood, 73 ; S; C., Taylor, 146; Ib. 239; Bender v. Asken, 2 Dever. 149; Skinner v. Moore, 2 Dev. & Bat. 138.
    The like general rule is settled in England. During the same term, judgments are. amendable at common law, — being then in paper, in fieri, in the breast of the court. Afterwards,they are only amendable under the Statutes of Amendments or ’ Jeofails. See 2 Tidd’s Pr. 975; 2 Archb. P 243 ; Ib. 202, 203, as to setting aside judgments for irregula- „y.'
    If courts were not held strictly to the rule contended for, what would become of acts imposing limitations on writs of error, or of those protecting purchasers at sheriffs’ sales ?
    The second question was this: — Was the-judgment entered at November term, 1841, void or irregular, because the foreign citizenship of Lacoste was. not. alleged in the first count ? They contended that this was not the case; it was merely matter assignable as error, upon a writ of error.
    They cited, on this point, McCormick v. Sullivant, 10 Wheat. 192; Yoorheesv. Bank of Unite'd States, 10 Peters, 449 ; Kemp v. Kennedy, 5 Crunch, 185; Skillen v. May, 6 ib. 267.
    The courts of the United States are courts of limited, but not of inferior jurisdiction. Their judgments, until reversed on error, are conclusive between parties and privies.
    Under this head, they further contended that there was not ■necessarily a defect of jurisdiction'in the Circuit Court over the first two counts,- because it did not appear but that Lacoste was a citizen of another State whén the note was .indorsed. If he were so then, the jurisdiction of the Circuit Court would not be taken away, although, at the time of the bringing of the present suit, he had become a citizen of Mississippi. The 11th section of the Judiciary Act of 1789 would be fully satisfied by this construction. The right of the assignee of a chose in action to sue in the federal court could not be taken away •by his assignor subsequently becoming a citizen of the same State with the defendant.
    In the third place, they argued, that, under the statute law of Mississippi governing the case, the judgment of November term, 1841, was not erroneous, and that consequently,' on a writ of error, this court would not have reversed the judgment. Although by the common law, where, in a civil suit, one count . is good and the others bad, and there is a general finding, judgment will be arrested, yet, by the statute law of Mississippi, a different rule prevails. They referred to the 12th section of the act of 1820. (Hpw. & Hutch. Dig. 591.) The defendant must apply to the court to instruct the jury to disregard the faulty count.
    They contended that this statute was binding üpon the Circuit Court of the United States for Mississippi. The act of Congress of May 19, 1828 (4 Statutes at Large, 218), provides that the forms and modes of proceeding then used in the highest ■courts of original and general jurisdiction in the States admitted into the Union since 1789 shall be the rules of the United States courts held in- those States, subject to alterations and additions by said United States courts, or by the Supreme Court of the United States. The statute of Mississippi was passed eight years before this, act of Congress. That State was admitted into the Union in 1817.
    But, further than this, the Circuit.Court of the United States for the Southern District of Mississippi adopted the practice and proceedings of the State courts by their printed Rules of 1839. See section 30. of those Rules.
    This, provision of the act of 1820 binds the United States courts in Mississippi, as one-of the “ forms and modes of proceeding ” in that State. In support of this, they cited United States v. Boyd, 15 Peters, 187; McNutt v. Bland, 2 How. 9; Gwin v. Breedlove, ib. 29.
    For the distinction between final and mesne .process, as bearing upon this head, they cited Bronson v. Kinzie, 1 How. 311 ; McCracken v. Hayward, 2 ib. 608.
    They admitted that the statute law of Mississippi (sec. 33, act of 13 May, 1837; How. & Hutch. Dig. 595), which pompelled plaintiffs to sue in one action the drawers and indorsers of promissory notes who live in Mississippi, does not confer upon the courts of the United States jurisdiction of a case where otherwise they would not have it; nor is such a joint suit maintainable, in the federal courts, as has been decided in Dromgoole v. F. & M. Bank,- 2 How. 241;. Keary v. same, 16 Peters, 89, and Gibson v. Chew, ib. 315. But inasmuch as the suit had been, before verdict, properly discontinued as to liar coste, this difficulty was removed, and the action stood as if originally brought against the present defendants alone.
    . In further proof of the error of setting aside the judgment in the Circuit Court, the three last counts showing jurisdiction, they cited and relied upon Molían v. Torrance, 9 Wheat. 537.
   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 indorsed to the plaintiffs.

The defendants pleaded that they did not promise ás al- . leged, and a verdict was found against them, without any stater ment being given of the evidence laid before the jury or the court, though copies of the two notes named in the. declara- . tion are printed in the case.

The various questions which this state of the record presents, and which b&ar 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. Turner v. Bank of North America, 4 Dall. 8; and 9 Wheat. 539; Dromgoole et al. v. Farmers’ & Merchants’ Bank, 2 How. 243; and Keary et al. v. Farmers’ & Merchants’ Bank of Memphis, 16 Peters, 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. Mohan 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 indorsee. 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. (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. 2 Howard, 263: 2 Saund. 171, b; 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 béen arrested for want of proper averments in ttíem 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’s Rep. 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. Jackson v. Ashton, 10 Peters, 480; Catlin v. Robinson, 2 Watts, 379; 12 Peters, 492; 3 Bac. Ahr. Error, T. 6; Co. Lit. 260 a; 7 Ves. 293; 12 Ves. 456; 1 Stor. P. 310; 1 Hoff. Pr. 559; 2 Smith, Ch. 14; 9 Peters, 771; 3 John. 140; 9 John. 78; Kelly v. Kezir, 3 Marsh. R. 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 á 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 et al. v. Ashton, 10 Peters, 480; Lessee of Hickey et al. v. Stewart, 3 How. 762; Henderson v. Poindexter, 12 Wheat. 543; Elliot et al. v. Piersol et al., 1 Peters, 340; Wilcox v. Jackson, 13 Peters, 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. 3 Wheat. 591; 3 Peters, 431; 12 Wheat. 10 ; Lawrence v. Cornell, 4 Johns. Ch. 542. Or power to correct mis- ' prisions 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 Peters, 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 Peters, 431. Irregularities, also, in notices, mandates, and similar proceedings can still, in some cases, be amended. Ex parte Crenshaw, 15 Peters, 123.

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. 2 How. 243; 3 Johns. 95; Poph. 102; Pease v. Morgan, 7 Johns. 468; Cheetham v. Tillotson, 4 Johns. 499; 1 Johns. Ca. 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 par- . ties 'were not at all before the court, may be revoked at a subsequent term, the hearing having been irregular and a nullity. Ex parte Crenshaw, 15 Peters, 119; 14 Peters, 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. 12 Peters, 492; Jenkins v. Eldridge et al., 1 Woodb. & Minot, 65, and cases cited; Anthony et al. v. Love, 3 Ohio, 306 ; Bennett v. Winter et al., 2 Johns. Ch. 205; 3 Marsh. R. 268; Southgate v. Burnham, 1 Greenl. 375.

Beside these remedies, judgments entered up by fraud may, perhaps, on due notice, by sdre 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 ; 2 How. 243; Capron v. Van Norden, 2 Cranch, 126. But it has been repeatedly settled, that even then, without any plea to the jurisdiction, and after a verdict for tbe plaintiff on the general issue and final judgment, it is not á nullity, but must be enforced till duly reversed. Kempe’s Lessee v. Kennedy, 5 Cranch, 185; and Skillern’s Executors v. May’s Executors, 6 Cranch, 267 ; McCormick v. Sullivant, 10 Wheat. 192; Voorhees v. Bank of United States, 10 Peters, 449; 3 Ohio, 306; Wilde v. Commonwealth, 2 Metc. 408; Hopkins v. Commonwealth, 3 Metc. 460. Because it would be a judgment rendered by a court, not of inferior, but only limited, jurisdiction, and the merits would have been investigated and decided by consent. This view is supported by the English doctrine. There, though judgments of inferior .courts or commissioners are often void, when on- their face clearly without their jurisdiction, and may be proved to be so and avoided without a writ of error (3 Bac. Abr. Error, A; 10 Cok. 77 a ; Hawk P. C. ch. 60, sec. 3); yet the judgment of a superior court is not void, but only voidable by plea on error. Bac. Abr. Void and Voidable, C; 2 Salk. 674; Carth. 276. Even where the record of a circuit court did not contain any averments giving' jurisdiction, this court has held that, at a subsequent term, after final judgment, the same tribunal which rendered it could not set it aside on motion.- Cameron v. McRoberts, 3 Wheat. 591. And we have repeatedly decided as to judgments of this court, that they could not be changed at a subsequent term, in matters of law, whether attempted on motion, or a new writ of error, or appeal, on the mandate to the court below. Hunter’s Lessee v. Warton, 6 Cranch, 316; 6 Cranch, 267; 1 Wheat. 364; Santa Maria, 10 Wheat. 442; Davis v. Packard, 8 Peters, 323; 9 Peters, 290; 12 Peters, 491, 343; 15 Peters, 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.

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 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 epurt before the said judgment dismissing the case.


author: Mr. Chief Justice TANEY

text:
    Jonathan W. Nesmith and Thomas Nesmith, Complainants, v. Thomas C. Sheldon, Horace H. Comstock, David French, William E. Peters, James Forton, Atla E. Mather, Henry B. Holbrook, Samuel P. Mead, Francis E. Eldred, Phœbe Ann Dean, Cullen Brown, and Charles H. Stewart, Defendants.
    Where it is evident, from the record, that the whole case has been sent up to this court, upon a certificate of division in opinion, the case must be dismissed for want of jurisdiction.
    This case came up from the Circuit Court of the United States for the District of Michigan, on a certificate of division in opinion between the judges thereof.
    The facts were briefly these.
    The second section of the 12th article of the Constitution of Michigan is in these words, viz.: —
    “ The .legislature shall pass no act of incorporation, unless with the assent of at least two thirds of each House.”
    On the 15th of March, 1837, the legislature passed an act entitled, “An act to organize and regulate banking associations.”
    Under this act a company was formed and commenced doing business as a banking association, under the name of the Detroit City Bank.
    On the 15th September, 1838, Harris, the cashier of the Detroit City Bank, drew a bill of exchange upon the Albany City Bank, in the State of New York, in favor of J. W. and, T. Nesmith, for six hundred dollars, payable nine months after date, which bill was protested for non-payment when due.
    Ih February, 1833, whilst the bül was running, the Detroit City Bank became insolvent.
    The plaintiffs, Nesmiths, sped the bank upon the bill, and obtained a judgment in May, 1841, in a State court.
    The plaintiffs then proceeded, under a statute of the State,, against the directors of the bank, and obtained a judgment in July, 1841, in the Circuit Court of the United States. An execution was issued upon this judgment, which was returned wholly unsatisfied.
    The plaintiffs then, under the same statute, filed a bill on the equity side of the Circuit Court against the stockholders, being the defendants mentioned in the title of this case, seeking to hold them individually liable, ih proportion to ihe amount which each one held in the stock of the bank.
    To this bill the defendants put in general demurrers.
    The cause was heard on the bill and demurrers. The following points and questions were made and presented by the complainants: —

      1. Whether the banking associations organized under the act of the legislature of the State of Michigan, entitled, “ An act to organize and regulate banking associations,” approved March ISth, 1837, and.the amended act, entitled, “ An act to amend an act entitled' ‘ An act to organize and regulate banking associations and for other purposes,’ ” approved December 30th, 1837, wére or were not corporations or bodies corporate, within the . meaning of the constitution of the State of Michigan.
    2. Whether said acts of the legislature, or either of them, are in accordance with the provisions of the constitution of the State, and valid, or contrary thereto; and void, in whole or in part.
    3. And if so much and such parts of said acts as purport to create corporations, or bodies corporate, are repugnant to the constitution and void, whether the remaining parts of said acts are not valid, and the directors and stockholders of the association, set out in the bill, liable for the debts thereof, according to the provisions of said amended act.
    4. Whether the stockholders of the Detroit City Bank are, or are not, liable in their individual capacity, as corporators, or as members of a joint-stock association, company, or copartnership, to pay the debts due to the complainants, as set forth in the bill.
    5. Whether the defendants are,- or are not, liable to pay the debt due to the complainants, set out in the bill of complaint.
    On the part of the defendants, the following points were made: —.
    1. The Supreme Court of the State of Michigan has decided that .the acts under which the Detroit City Bank was organized were intended to authorize the creation of an indefinite num-, her of corporations, by the prospective action of individuals ; that they were so far unconstitutional and void, and under them no corporate body cóuld legally come into, existence. This decision of the Supreme Court of the State will not be questioned by the Courts of the United States, but will be followed and applied to the latter.
    2. If the Detroit City Bank was not validly in existence as a corporation, of artificial person, then it Was- not exempted from. the. penalties and ■ restrictions of the laws of Michigan on the subject of unauthorized banking, commonly called the re- ■ straining laws.
    3. Under the acts last referred to, the claim of the complainants was illegal and forbidden,' and could not be the basis of a recovery.
    . 4. The Detroit City. Bank having contracted as a eorporation, when it was not such, its contracts on that account are invalid.

      5. If the Detroit City Bank was not a corporation, then the defendants can be liable only as general partners.

    6. If liable only as general partners, the judgment against the directors is a merger of the whole claim.
    7. If the defendants are general partners, the remedy against them is complete at law.

      8. If the court shall hold that the Detroit City Bank was validly a corporation, .and authorized to engage in banking, then it is further contended by the defendants, that the bill which forms the foundation of the claim of the complainants was illegal, because not payable on demand.

    9. The defendants are not concluded by the judgment against the bank, but may dispute the validity and obligation of the original claim.
    Upon all the above points and questions, as made and presented by the complainants and defendants, the opinions of the judges of the Circuit Court were opposed ; wherefore, it was ordered that the same be stated, under the direction of the judges, and certified, under the seal of this court, to the Supreme Court, at theh next session to be held thereafter.
    The case was very elaborately argued in print by- Mr. E. C. Seaman and Mr. J. M. Root, for the plaintiffs, and Mr. George E. Hand and Mr. Theodore Romeyn, for the defendants. But as the case went off upon a point of jurisdiction, the arguments are omitted.
   Mr. Chief Justice TANEY

delivered the, opinion of the court.

This case comes before the court upon a certificate of divis-r ion from the Circuit Court for the District of Michigan. Upon opening the record, it is evident that the whole case has been sent up in this form. It is, indeed, divided into points, but most of them are merely hypothetical, and might never have arisen or required a decision upon them in the Circuit Court. ' For whether they would or would not arise depended altogether upon the decision of points which precede them in the statement.

.This subject has been frequently before the court, 'and we have repeatedly said, that, under such certificates of division, we have no jurisdiction. Without attempting to enumerate the cases, it is sufficient on the present occasion to refer to White v. Turk and others, 12 Peters, 238, and The United States v. Stone, 14 Peters, 524, which are decisive of this case. It is unnecessary, therefore, to examine the printed arguments that have been filed, as the case must be dismissed for want of jurisdiction.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Michigan, and on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and Which were certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. And it appearing to this court, upon an inspection of the said transcript, that no point in the case within the meaning of the act of Congress has been certified to this court, it is thereupon now here ordered and adjudged by this court, that this cause be. and the same is hereby dismissed, and that this cause be and the same is hereby remanded to the said Circuit Court, to be proceeded in according to law.