49 U.S. 470
SCOTUS
1850

Lead Opinion

Mr. Justice GRIER

delivered the opinion of the court.

The plaintiffs in error were plaintiffs below. They declared *484on a 'promissory note given- by defendant tó -James. H. Johnson, .or order, for the sum of $ 5,437.59, payable five years áfter date. The note waS indorsed'by the payee and delivered to John-'Stivers, -who delivered it to the plaintiffs. The defendant pleaded non assumpsit-, and'a jury being called, found a special verdict, setting forth the note, and finding that it was made by the defendant and delivered by him to the payee, but that “ the con-' ■ sideration’ was fraudulent oh the' part of the payee ”; that the. note was indorsed by the payee to John Stivers before its maturity, “arid that there has not been any evidence submitted to the jury that said Stivers paid value therefor, or that there was any consideration for such indorsement, unless the same ought to be inferred from the matters herein'stated,” &c. They also find that Stivers delivered the note to plaintiffs, but without saying whether for a valuable consideration or not; and they refer the court to the deposition of a witness and the record, of a chancery suit appended to the verdict for the evidence on that point.' ' ■

This special verdict is-manifestly imperfect'and uncertain, as it finds the evidence of facts, and not the facts themselves.

A verdict, says Coke (Co. Litt. 227, a), finding matter uncer-tainly and ambiguously, is insufficient, and no judgment' will be given thereon.

A verdict which finds but part of the issue and says nothing as to the rest is insufficient, because the jury have not tried the whole issue. So, if several pleas are joined, and-the jury find some of them well, and as to others find a special verdict which is imperfect, a venire facias de novo will be granted for, the whole. 2 Roll. Abr. 722, Pl. 19; Auncelme v. Auncelme, Cro. Jac. 31; Woolmer v. Caston, Cro. Jac. 113; Treswell v. Middleton, Cro. Jac. 653; Rex v. Hayes, 2 Ld. Raym. 1518.

In all special verdicts, the judges will not adjudge upon any matter of fact, but that which the jury declare to be true by-their own finding; and therefore the judges will not adjudgb upon an inquisition or aliquid talé found at large in a special verdict,; for their finding the inquisition does not affirm that all in it is tnie: Street v. Roberts, 2 Sid. 86.

In the Chesapeake Ins. Co. v. Stark, (6 Cranch, 268,) and Barnes v. Williams, (11 Wheaton, 415,)',t'his'coúrt have decided that; w'hém'ín'a:áp'éciál' verdicúth‘e essehtia.rfacts.are not distinctly found by' the'jury, although th.eré is sufficient evidence to establish thém,' the' court will • hot render ‘ á judgment üpoii such' an imperfect special verdict, -but. will .remjtpd the cause to t)ie court béVoíw*$ith’venire dd'ntívtí.', The court !iñ‘ this cáse vfoüiíT háve!‘WeehT‘duMljd ‘püiküb'the' same *485course, if the ■ judgment of the court below had been rendered on the imperfect special verdict which the record exhibits. But it appears that the' court and counsel were aware of this imperfection in the verdict, and that it was not such as would warrant any judgment thereon by the court. Nevertheless, the parties-, instead of asking for a venire de novo, dr amending the verdict, agree to waive the error, and to submit the cause to the court, both on the facts and the law¡ Their agreement is as follows: —

“ Memorandum. Upon the trial of this cause the parties, by their attorneys, filed a written agreement in the words following, to wit: — ‘ And the parties agree that the court, in deciding upon the foregoing verdict, shall look to and regard the. decisions of the courts of the State of Pennsylvania, as found in the several printed volumes of1 the reports thereof, to avail as much as if the same were found by said verdict, and to have such weight as in the judgment of the court they ought to have; and the parties further agree to waive all objections to said verdict on account of its' finding in'part evidence, and not fact. And that the court, in deciding thereupon, may make all just inferences and conclusions of fact and law from the evidence and facts therein stated, and the decisions aforesaid, which, in the opinion of the court, a jury ought to draw therefrom if the same were submitted to them upon the trial of ,.this cause; and that this agreement is to be made part of the record in this suit:'’’ ” ■ , . .. •

■ The judgment of the court below Was rendered' upon this submission, arid not oil the, special verdict alone.

J In cases-at law, this court can only review the 'errors of the court below in matters of law appearing- on the record." If the facts lipón which that court pronounced their judgment do not appear Orí the record, it'.is impossible for this court to say that their judgment is erroneous in law. What “inferences or conclusions of fact ” the court may have drawn from the evidence submitted to thém, we are not informed by the récord, The fact submitted to the judge formed the; turning-point.'of the cáse. So fár as the record exhibits the facts/ rib error appears. Thé note being found to have been ob.tainep. from the defendant by fraud, the plaintiff’s right to recover on it'necessarily depended on the'fact that he §ave some consideration for it, ór received it in the usual course of -trade.- • Wé. must' presume, that" the court •found" this fact- against the--plaintiff; arid'if só; their judgmérit •was" undoubtedly correct.. Whether their “inferences or conclusions of fact’-' wér'é correctly dráwrifróm the evidence,not ;for thisc'buift to decide. ' '-

*486That such has been the uniform course of decision in this court, may be seen by reference to a few of the many cases in which the same difficulty has occurred. In Hyde v. Booraem, (16 Pet. 169,) this court say, — “ We cannot upon a writ of error revise the evidence in the court below, in order to ascertain whether the judge rightly interpreted the evidence, or drew right conclusions from it. That is the proper province of the jury, or of the judge himself, if the trial by jury is waived. The court can only reexamine the law so far as he has pronounced it on a state of facts, and not merely on the evidence of facts found in the record in the making of a special verdict or an agreed case. If either party in the .court below is dissatisfied with the ruling of the judge in a matter of law, that ruling should be brought before the Supreme Court, by an appropriate exception, in the nature of a bill of exceptions, and should not be mixed up with supposed conclusions in matters of fact.” See, also. Minor v. Tillotson, 2 How. 394, and United States v. King, 7 How. 833.

The judgment of the court below is therefore affirmed.

Mr. Justice McLEAN, Mr. Justice WAYNE, and Mr. Justice WOODBURY dissented. Mr. Justice WAYNE.

I do not concur with the court in the course which it has taken in this case, or in affirming the judgment. The record in my view is irregular. It is difficult to say whether it has been brought to this court upon a special verdict, or a case stated by agreement of the parties; and I think it difficult to determine whether the court below acted upon either. It may have given its judgment pro forma to get the case to this court. I think a different direction ought- to have been given to it, by returning the case to the District. Court for amendment, so that (he casé might have been decided substantially upon its merits. This would have been according to what has been done by this court in other cases similarly circumstanced as this case is.





Dissenting Opinion

Mr. Justice WOODBURY.

I feel’obliged to dissent from the judgment in this case. It is conceded that the special verdict is defective in form. Instéad of stating some of the matter as a fact,— only the evidence of it is given. The most obvious and proper course under such circumstances would seem to be, to send the case back, ánd give an opportunity to the plaintiff to have that defect corrected, and afterwards, if the case comes up again, *487to render judgment on the merits upon all the facts, when thus formally set out. This could regularly be done by reversing the judgment below, instead of affirming it, as here. That judgment was rendered erroneously on this same defective verdict, instead of putting it first in proper shape, and then deciding, on it as corrected.

After the reversal here, we should, in my opinion, remand the case to the Circuit Court, not to have judgment entered there either way on this imperfect verdict, but to have a venire de novo ordered so as. to correct it. Such I understand to be the well-settled practice of this court. As decisive proof, that the course now pursued, of refusing to send the case back for correction before final judgment, is not in accordance with what has been done by this court in like cases, Chief Justice Marshall, in Chesapeake Ins. Co. v. Stark, 6 Cranch, 268, observed, — “ In this case the jury have found an abandonment, but have not found whether it was made in due time or otherwise. The fact is therefore found defectively, and for that reason a venire facias de novo must be awarded.” “ Judgment reversed, and the cause remanded,, with directions to award a venire facias de novo.”. Such was deemed the proper course there, rather than at once to give absolute and final judgment, as here, against the plaintiff, because the special verdict was defective. Another objection there was precisely as here, “ because the jury have found the evidences of the authority and time, but not the fact of authority nor the reasonableness of the time.” (p. 271.)

So again, in Livingston v. Mar. Ins. Co., 6 Cranch, 280, the court made a like order. And another of similar character in Barnes v. Williams, 11 Wheaton, 415. We should thus obtain a verdict in due form, with all the facts found positively, and not the mere evidence of some of them submitted. And the judgment below could then be rendered understandingly, as it. could also here, if the case was again brought here by either party.

It does not seem promotive of justice to affirm a judgment below, on the ground that the imperfect verdict must at all events stand, and to decide technically on the hypothesis that a certain transaction is not. in the case as a fact, and is not to be considered, nor allowed to be corrected and restated, though fall evidence of it is submitted. And the more especially does it look , wrong, where, if it was corrected in conformity with what the evidence proves, fhe judgment ought, in my view, to be for the plaintiffs.

But it is objected, that the counsel agreed below to waive *488this exception to the special verdict, and consequently the court there rendered judgment on that agreement arid waiver,-as well as on the verdict, and that, this was a wrong course of proceeding.

Supposing it was wrong, .there is no proof that the court acted on the agreement and waiver, but may have deemed-; it - proper to disregard them and decide on the verdict alone. On ' the contrary, if that court decided on the whole, their decision for the defendant seems to me erroneous, both on the merits .'and on the.course of pioceeding, and .ought in either court.to .he reversed instead of affirmed, as it has been on this occasion • by the majority of this court. The .original plaintiffs should, on the apparent merits, in my apprehension, recover, -because no doubt exists, first,., that in point of law the note in 'controversy must be construed by the laws of Pennsylvania, where it was made; and that by those laws it was, negotiable. See act of February 27th, 1797, 4 Dallas, Laws of Pennsylvania, 102.

It is as little in doubt, that, no pretence exists hut-that -the plaintiffs took this note from the second indorsees before it-was due, and without any circumstances to excite suspicion or cast a shade over its goodness, and without any notice or knowledge of the badness of its original consideration.

Under such circumstances it is equally-clear, that such a bond fide holder of a note is presumed to- have - given a-valid consideration for it, and on producing it is entitled to-a-recovery of-its amount, unless this presumption is repelled by counter evidence, Story on Prom, Notes, p. 220.

. .Furthermore^ in such.case it is no. obstacle to a recovery, that a consideration is not shown between • the first indorsee and his indorser. 1 Adolph. & Ell. 498.

But it is found here that, for some reason not specified in the record, there was fraud hr the original consideration; . Hence it is contended that the'holder must, in spch case, prove a consideration given by him; but he is not otherwise affected by the original fraud,..when without notice of it. 4 Adolph. & Ell. 470; Chit, on Bills, 69.

Granting this.for the .argument, if .appears that . he proceeded to.,show a consideration, and.'proved that -the second .indorsee .passed the note to.him to. secure .--and pay certain-debts, and liá- . Unitiesi assumed then in;his, behalf .gs.-wopkl seem to. be. inferrable from the . record. It,,would in- that .event ,-be obtained in .. the cqurse of business for. a■ pew .-and -origipal,-consideration,: and thus the transfer stood unimpeached. But":if ;th'e .debts wefe . preexisting .ones, as is contended,ithey:-wouldf still; constitdte a *489good consideration. However the decisions in different States on this may differ, and may have changed at different periods, this court seems deliberately to have held this doctrine in Swift v. Tyson, 16 Peters, 15, 22.

It will not answer to overturn all these established principles, because some might fancy the equities of the maker, who was defrauded as to the consideration, greater than those of the present holder, who paid a full and valuable consideration for the note, relying, too, on the good faith of'the maker, not to send negotiable paper into the market, ánd running for five years, so as to mislead innocent purchasers, and, for aught which appears, making no attempt to recall it when discovering he was defrauded, and giving no public and wide caution, as is usual, by advertisement or otherwise, against a purchase of it after such discovery.

Under such circumstances, if equities were to weigh, irrespective of 'the law, which cannot be correct, they seem rather to preponderate in favor of the holder, who has -thus been misled and exposed to be wronged by the conduct of the maker. United States v. Bank of the Metropolis, 15 Peters, 398.

. Finally, were we compelled to give a decision as to the merits on the special verdict, as it now. stands somewhat defective in form, but with an agreement by counsel virtually to waive the defect of form, it would be most just to regard the jury as intending to find for a fact what they find as given in evidence and uncontradicted. This is clearly the substance of this verdict, and in such a view, as already shown, the same result would follow, that the plaintiffs appear' in law entitled to recover.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Western District of Yirginia, and was argued by counsel. • On consideration whereof,' it is now here ordered and adjudged by this court, that the judgment of the said District Court in this cause be, and the same is hereby, affirmed, with costs.