UNITED STATES SUPREME COURT DECISIONS ON-LINE

Where the complainant and respondent in a suit in chancery entered into a mutual covenant, that, pending the suit, they would divide the money between them in certain proportions and that if, in the said suit, it should be decreed that these were not the correct proportions, they would respectively pay the difference so as to conform to the decree, and the result of said suit was a dismissal of the complainant's bill with costs, and the respondent brought an action of covenant against the complainant, reciting the agreement in his declaration with an averment that, by virtue of the decree of dismissal, he was entitled to receive a certain sum of money, this declaration was bad.

The agreement looked to a judicial determination of the rights of the parties in some court of law or equity, and the declaration omits all averment that these rights had been so settled.

The decree of dismissal did not of itself prove that the complainant owed the respondent anything. It only proved that the respondent was not indebted to the complainant.

Nor is this defect in the declaration cured by verdict. It cannot be presumed that evidence was given upon the trial to show that some decree had adjusted the amount due, as claimed in the declaration, because this would be presuming against the record, which recites the substance of the decree. A total omission to slate any cause of action is a defect which a verdict will not cure.

The averment of the virtute cujus is insufficient either as matter of law or fact -- as law because no such legal consequence could follow from the premises and as fact because the averment was in contradiction to the record itself.

There was no bill of exceptions in the case, but the whole record was brought up upon the allegation of a fatal defect in it, because no cause of action was shown by the plaintiff below in his declaration.

Hobson, a citizen of Alabama, brought an action of covenant against McDonald, as the administrator of McArthur. As the whole case depended upon a very nice point of pleading, the Reporter has thought it proper to insert the whole of the declaration, which was as follows:

"William McDonald, administrator of all and singular the goods &c., of Duncan McArthur, deceased (which said William is, and the said Duncan was, at the time of his death, a citizen and resident of the State of Ohio) was summoned to answer unto Matthew Hobson, a citizen and resident of the State of Alabama, in the said United States of America, of a plea of covenant broken, and thereupon the said Matthew, by Wm. Key Bond and H. Stanbery, his attorneys, complains: for that whereas, heretofore, to-wit, on 25 September, A.D. 1830, at Chillicothe, in the said District of Ohio, by a certain article of agreement, made and executed, as well by the said Matthew as by the said Duncan and sealed with their seals respectively, which said article being on file in this court

Page 48 U. S. 746

as an exhibit in the case in chancery hereinafter mentioned, the said plaintiff is unable to make profert thereof, it was, among other things, witnessed:"

"That whereas on the 10th day of November in the year of our Lord 1810, a contract was entered into by and between John Hobson and Matthew Hobson (the said plaintiff) of the one part and Duncan McArthur (the said defendant's intestate) of the other part, providing for the withdrawal of certain entries of land warrants, and the relocation of the same, as by reference to said contract will appear, since which time the said John Hobson had transferred his interest in said contract to the said Duncan McArthur, and whereas, on 26 May, 1830, the Congress of the United States passed and enacted a certain statute in virtue of which it became competent for the parties to the said last-mentioned contract, as holders and owners of the reentries made under said last-mentioned contract, to relinquish the same to the United States, and receive therefor the amount at which the lands included in said entries were valued by an inquest appointed by the United States, with interest, as by the said statute would appear."

"And whereas the said Matthew and Duncan were each willing to make such relinquishment to the United States and avail themselves of the benefits of the said act of Congress, but had disagreed about their respective rights under said last-mentioned contract, in consequence of which said disagreement the said Duncan McArthur had then recently instituted a certain suit in chancery in the Supreme Court of the State of Ohio in and for the County of Ross, in said state; and, among other things, had obtained an injunction in said cause restraining the said Matthew Hobson from receiving any money under the said act of Congress, until the matters could be inquired into, as by reference to said suit would fully appear."

"And whereas (as is further recited by said article of agreement first herein mentioned) the said parties, to-wit, the said Matthew and Duncan, were then mutually willing and anxious that the said money, so appropriated by the said act of Congress, or such part of it as should await the determination of said suit, should not remain inactive, and did therefore wish to put the whole matter in such state as would make the fund available and profitable pending the same suit, but without in any manner affecting or being held or interpreted as affecting their said controversy, in order to accomplish which it had then been determined and arranged that the said Matthew should assign and transfer to the said Duncan all the interest of the said Matthew of, in, and unto the said entries and warrants in such way as would enable the said Duncan to receive from the United States the moneys aforesaid, out of which said money the said Duncan should at

Page 48 U. S. 747

once pay to the said Matthew the sum of eleven thousand five hundred dollars, and retain the balance of the same in his, the said Duncan's, possession, and the said Duncan, in and by the said article of agreement first herein mentioned, did covenant to and with the said Matthew that if, in the said suit so instituted as aforesaid, it should be held, adjudged, decreed, or determined that the said Matthew, his heirs or assigns, executors or administrators, were or should be entitled to any greater portion of said money, directly or indirectly, than the said sum of eleven thousand five hundred dollars, then and in such case he, the said Duncan, his heirs, executors, or administrators, should and would pay to the said Matthew, his heirs, executors, administrators, or assigns, at the Bank of Chillicothe any such excess over and above said sum, together with interest on such excess, from the day of the date of said article of agreement, which said covenant last aforesaid, it was provided by said article of agreement, should be held to embrace any judgment, order, or decree, which might produce the said result, whether made and rendered in said suit in chancery or in any other suit or before any other tribunal, founded on the same subject matter or contract, and in and by said first-mentioned article of agreement it was further witnessed that the said Matthew Hobson did thereby covenant to and with the said Duncan McArthur that in case it should be determined, held, ordered, adjudged, or decreed in said chancery suit, or before any other tribunal finally decided in a suit founded on the same subject matter that he, the said Matthew Hobson, was entitled to a less sum than the aforesaid sum of eleven thousand five hundred dollars, then and in such case he, the said Matthew Hobson, his heirs, executors, and administrators should and would refund and pay to the said Duncan McArthur, his heirs, executors, administrators, or assigns, at the Bank of Chillicothe, the said amount so received by him beyond what he was entitled to, with interest thereon from the said date of said article of agreement."

"The said plaintiff further says that in performance of his covenant in that behalf in said article of agreement mentioned, he did afterwards, to-wit on the said 25 September, A.D. 1830, at Chillicothe aforesaid, assign and transfer to the said Duncan McArthur all the interest of him, the said Matthew, of, in, and unto the said entries and warrants, which said assignment and transfer was then and there accepted and received by the said Duncan in discharge of the said covenant of the plaintiff in that behalf so made as aforesaid. In virtue of which said assignment and transfer, the said Duncan afterwards, to-wit on the same day and year last aforesaid, at Chillicothe

Page 48 U. S. 748

aforesaid, did receive from the United States the moneys so appropriated, amounting in the whole to a large sum of money, to-wit, the sum of fifty-seven thousand six hundred and eight dollars."

"And the said plaintiff further says that such proceedings were afterwards had in the said suit in chancery, referred to in said before-recited article of agreement, that afterwards, to-wit, at the December term, A.D. 1831, of said Circuit Court for the Seventh Circuit and District of Ohio, the said suit in chancery was, on the petition of said Matthew Hobson on the ground of his residence and citizenship in the State of Alabama aforesaid, removed to and docketed in the said circuit court, and such further proceedings were afterwards had in said suit that the same was finally heard and decided before the Supreme Court of the United States at Washington, to which said court the same had been taken by appeal from the decree of said circuit court, at the January term thereof, A.D. 1842, and such decree was by the said Supreme Court of the United States then and there rendered that it was adjudged and ordered that the said Matthew Hobson should recover against the complainants in said suit, viz., Allen C. McArthur, James D. McArthur, Effie Coons, Mary Trimble, Eliza Anderson, Frances Walker, and John Kercheval, heirs at law of said Duncan McArthur (he, the said Duncan, having deceased during the pendency of said suit, and the said last-mentioned complainants having been made parties thereto in his place and stead) the sum of one hundred and sixty-six dollars and eighty-three cents, for his costs therein expended, and that he have execution therefor, and further that the said cause should be and the same thereby was remanded to the said circuit court with directions to the said last-mentioned court to dismiss the bill without prejudice."

"And afterwards, to-wit, at the July term, A.D. 1843, of the said circuit court, to which the mandate of the said Supreme Court had been duly sent for execution of the said last-mentioned decree, the said bill was, by the order of said circuit court, in conformity with said mandate, dismissed without prejudice, all which will more fully and at large appear by reference to the record and proceedings of said suit in chancery, and the said mandate, and several orders and decrees therein now in said court remaining."

"And the said plaintiff further avers and in fact says that in virtue of the decree aforesaid, he is well entitled to have and demand of and from the said defendant, as administrator as aforesaid, a greater portion of the said moneys, so received by the said Duncan McArthur as aforesaid than the said sum of

Page 48 U. S. 749

eleven thousand five hundred dollars, which last-mentioned sum the plaintiff admits he received from said Duncan at and after the execution of said article of agreement, to-wit, the sum of three thousand two hundred and one dollars, with interest thereon from the said 25 September, A.D. 1830. Of all which premises the said defendant, afterwards, to-wit, on 10 July, A.D. 1843, at Cincinnati, in the District of Ohio aforesaid, had due notice; yet neither the said Duncan whilst in life nor the said defendant as administrator as aforesaid, since the decease of said Duncan, has at any time, though thereto requested, paid to said plaintiff the said last-mentioned sum of money at the Bank of Chillicothe or elsewhere, or any part thereof, but the same to do have hitherto refused, and the same, with the accruing interest, still remains wholly due and unpaid. Wherefore the said plaintiff saith, that neither the said Duncan nor the said defendant, his administrator as aforesaid, hath kept the said covenant in that behalf, but the same is broken, to the damage of the said plaintiff of ten thousand dollars, and therefore he brings suit &c."

"BOND & H. STANBERY, Attorneys for Plaintiff"

The defendant demurred to this declaration, but his demurrer was overruled.

At December term, 1843, the defendant craved oyer of the agreement, and pleaded non est factum and nul tiel record. The plaintiff joined issue upon both pleas. clubjuris

Page 48 U. S. 753