HOPKINS v. ORR

MR. JUSTICE GRAY, after stating the case as above reported, delivered the opinion of the court.

It was not contended in either of the courts of the Territory that any question of fact should have been submitted to the jury; but the contest was upon the sufficiency of the evidence and the verdict, in matter of law, to support a judgment for the plaintiffs.

Upon the testimony that the defendant admitted his indebtedness on the note given in evidence, that note, though varying from the description in the special count, was admissible under the common counts as evidence of money had and received by the defendant to the plaintiffs' use. Grant v. Vaughan, 3 Burrow, 1516; Page v. Bank of Alexandria, 7 Wheat. 35; Goodwin v. Morse, 9 Met. 278. And by the statutes of the Territory the sum so admitted to be due bore interest at the rate of six per cent. Prince's Laws, c. 79, § 4; Comp. Stat. § 1734.

The omission of the word "dollars" in the verdict was not such a defect as to prevent the rendering of judgment according to the manifest intent of the jury, although it might have been more regular to amend the verdict before judgment. Parks v. Turner, 12 How. 39; Beall v. Territory, 1 New Mexico, 507, 519.

It was argued for the defendant that under the rule recognized in Maryland v. Baldwin, 112 U.S. 490, the verdict being general on all the counts, and the evidence not supporting the special count, no judgment could be rendered on the verdict without first amending it so as to limit it to the common counts. But the technical rule of the common law in this matter has been changed by statute in many parts of the United States. Bond v. Dustin, 112 U.S. 604. In New Mexico, that rule has been abrogated by the statute of the Territory, by which "the Supreme Court, in appeals or writs of error, shall examine the record, and on the facts therein contained alone shall award a new trial, reverse or affirm the judgment of the district court, or give such other judgment as to them shall seem agreeable to law." Prince's Laws, c. 16, § 7; Comp. Stat. § 2190. The manifest object of the statute is, not merely to restrain the appellate court from going outside of the record, but to enable it to render such a judgment as upon a consideration of the whole record justice may appear to require.

The Supreme Court of the Territory was therefore authorized to affirm the judgment rendered by the district court upon the general verdict for the plaintiffs, if the facts contained in the record supported any count in the declaration, as we have seen that they did. And there can be no doubt of its authority to make its affirmance of the judgment conditional upon the plaintiffs' remitting part of the interest awarded below. Bank of Kentucky v. Ashley, 2 Pet. 327.

The statutes of the Territory further enact that, on an appeal from the judgment of a district court, execution shall be stayed upon the appellant's giving bond, with sureties, such as was given in this case, "conditioned that the appellant shall prosecute his appeal with due diligence to a decision in the Supreme Court, and that if the judgment or decision appealed from be affirmed, or the appeal be dismissed, he will perform the judgment of the district court, and that he will also pay the costs and damages that may be adjudged against him upon his appeal." Prince's Laws, c. 16, § 4; Comp. Stat. § 2194. They also contain a general provision that "in case of appeal in civil suits, if the judgment of the appellate court be against the appellant, it shall be rendered against him and his securities in the appeal bond;" and this court has adjudged that provision to be valid. Prince's Laws, c. 45, § 5; Comp. Stat. § 2206; Beall v. New Mexico, 16 Wall. 535; Moore v. Huntington, 17 Wall. 417.

By the judgment of the Supreme Court of the Territory, affirming the judgment of the district court as to the principal sum due, and also as to interest to the extent of six per cent, upon the plaintiffs' remitting the excess of four per cent interest, the judgment of the district court was affirmed, within the meaning of the territorial statutes and of the appeal bond. Butt v. Stinger, 4 Cranch C.C. 252; Page v. Johnson, 1 D. Chip. 338.

The result is, that the judgment of the Supreme Court of the Territory was rightly rendered for the plaintiffs against the sureties in the bond as well as against the principal defendant, and must be

Affirmed.