ALBANY, S. A. Foot, moved to amend the return, so as to make it correspond with the amended verdict in the Court below. October, 1823. He referred to 2 Dunl. Pr. 703, and the cases there cited, and Tillotson v. Cheetham, (3 John. Rep. 95.) S. Van Rensselaer, contra. A writ of error, to an inferior Court, removes, in judgment of law, the record itself; (2 Tidd. 1089, 90; 3 Caines' Rep. 86, 7; 3 John. Rep. 444 ;) though it is otherwise of a writ of error to the Supreme Court. (3 John. Rep. 98.) In both cases, execution issues from the Supreme Court: in one, because the record is removed there--in the other, because it remains there. If, then, the record was removed, the Common Pleas had no right to amend ; (1 R. L. 127;) and there is nothing to amend by in this Court. It is too late to move for an amendment, after having pleaded in nullo est erratum. The defendant in error, could not, at this stage of the proceedings, even allege diminution, which is merely for the purpose of supplying defects. This is never allowed in order to question the truth of the record certified. (Bac. Abr. Error, (E.) ) If the Error is merely formal, there is no need of an amendment. If it is matter of substance, and yet may be amended, there is no need of a Court for the correction of errors. The Court below may amend away the plaintiff's rights, at discretion. Again the objection, of laches, is sufficient. Not only is there an issue joined, but the cause has been several times noticed for argument. Curia. The delay of making this motion is fully accounted for; and the objection, of laches, fails. It is true, as contended, that here is a joinder in error, which admits the return to be perfect. It is, therefore, too late to allege diminution, and no certiorari can be awarded. But that objection does not reach the case. The office of a certiorari is to bring up matter of record, omitted in the return. The object here, is to amend, by the alteration of a date, in such a manner as plainly to subserve the ends of justice; and we think the case of Tully v. Sparkes, (2 Ld. Raym. 1570; 2 Str. 369,) fully justifies the motion. That case was error Rew V. Barker. Holmes V. Remson, ALBANY, from the K. B. to the Exchequer Chamber. A motion was October, 1823. made in the latter Court, for leave to amend imperfections in the record. They refused this, in the first instance, but gave time for applying to the K. B. which amended; and the Exchequer Chamber afterwards made a corresponding amendment in the transcript, and this too, after a joinder in error and argument in that Court. It is said, the Court below could not amend, because the record was brought up by the writ of error. But this is not so. For the purposes of amendment, it remains in the Court below; and the Exchequer Chamber considered it so, in Tully v. Sparkes, and proceeded accordingly. This case, with others to the same point, are cited as sound law, in Tillotson v. Cheetham, (3 John. Rep. 95.) The Court below have amended, as in Tully v. Sparkes, But suppose the record here, we would amend it ourselves. (Pease et al. v. Morgan, 7 John. Rep. 468.) The principle of this case was acted upon in Price v. M’Evers, (Col. Cas. 41,) in the Court of Errors, The inaccuracy of the special verdict arises from the mere oversight of the Judge in the Court below. It comes within the very common principle of amendments, that it is a mistake of an officer; and the motion must be granted. Rule accordingly. Where a party HOLMES and others, trustees for all the creditors of MULLET, an absent debtor, against REMSON and others, executors, &c. of CLASON, deceased. THIS cause was tried April 12th, 1821, when a verdict was omits to file found for the plaintiffs, subject to the opinion of the Court, inadvertently papers, neces sary to warrant his judgment, or to render it formally correct, or commits a formal mistake, in drawing up his judgment roll, it is of course, on motion, to allow an amendment: as where he omits to file the nisi prius record, postea, clerk's certificate, venire, and panel. These may be filed nunc pro tunc. And if these, or the like papers, are lost, the court will allow new ones to be drawn and filed. And they will allow the party to amend his continuances, or a nisi prius clause, in the judgment roll. These, and the like amendments, will be allowed after error brought, after paying the costs of the motion; and the proceedings in error, provided the plaintiff in error choose to discontinue. Holmes V. Remson. on a case, which was made; and in August term, 1822, the ALBANY, Court delivered their opinion in favor of the defendants. (20 October, 1823 John. 229, S. C.) The defendants' attorney then drew the record; but having soon after left the city of New York, where he resided, and where the cause was tried, on account of the yellow fever prevailing there, he did not then search for the nisi prius record. The judgment was afterwards delayed by an order to stay proceedings, and a motion to amend the case, and for a re-hearing, on the part of the plaintiffs, till January term, 1823, when the motion was denied. The judgment was then further delayed, by an injunction, till February thereafter, which being then dissolved, the defendants' attorney caused the judgment to be signed and filed, but forgot to search for the nisi prius record. On the 25th of July last the plaintiffs sued out a writ of error. The defendants' attorney inquired for the nisi prius record at the office of the Clerk of the sittings, where it was not found; nor could the plaintiff's attorney give him any account of it. In the record, the venire was awarded as returnable in October term, 1819, at the City Hall of the city of New York, and the parties were stated as appearing there; whereas by an appointment of the Governor, (the yellow fever prevailing in New York,) the Court was then held at the Capitol in the city of Albany. There was also a mistake in the nisi prius clause, in omitting the usual words, "if they, or either of them at a sittings appointed," and in some other particulars. P. A Jay, for the defendants, moved for leave to file a nisi prius record, postea, Clerk's certificate, venire, and panel, nunc pro tunc, as of the term of May, 1821, and also to amend the record, in the particulars specified. Hopkins, contra. Curia. It is a matter of course to allow these and the like amendments, where the omission or informality is accounted for. We grant the rule as applied for, on paying the costs of this motion, and if the plaintiffs choose to dis ALBANY, October, 1823. Alendorf V. Stickle continue their proceedings in error, the defendants must also pay the costs of the writ of error. Rule accordingly. The judgment, on a report of tioned to pay ALENDORF against STICKLE. DEBT, on the penalty of a bond for $3000, conditioned referees upon for the payment of $1500, and the performance of other bond condi- acts; with a partial assignment of breaches. Plea, non est money and factum, with notice of set off, of accounts. The cause beperform covenants, though ing referred, the referees reported a balance of only 13 dolreduced by set lars due to the plaintiff, who filed the report, and entered a off to $13, should be for rule for judgment, upon the penalty. the penalty, as a security for further brea J. W. Wheeler, in behalf of the defendants, now moved ches; and the for costs, to be set off against the plaintiff's recovery; and plaintiff shall have costs, acthat the judgment be corrected according to the statute, (1 cording to the R. L. 515, 516, s. 1.) amount of the penalty. Otherwise, where the condition only. H. B. Davis, contra. The plaintiff is entitled to judgis for the payment for the penalty, as a security for further breaches. (1 ment of money R. L. 518, s. 7. Hodges v. Suffelt, 2 John. Cas. 406. Pearson v. Bailey, 10 John. 219.) Had the sum been found by verdict, there would have been no doubt of this. Does finding the same sum, upon reference, alter the case? Here is a discount, by set off, from $1500 to $13. The claim exceeded $400, within the statute, (L. N. Y. sess. 41, ch. 79, s. 1.) Wheeler, in reply. The plaintiff does not take his judgment for the penalty, but for the balance found. (1 R. L. 516.) The provisions referred to, in the 50 dollar act, relate to accounts not bonds. Curia. The plaintiff must take costs according to his judgment, which is for the penalty. Godfrey v. Vancott, 13 John. 345.) It is peculiarly proper, in this case, that it Abernathy should be so, for the bond is conditioned, among other ALBANY, things, to perform covenants; and the judgment ought to October, 1823. stand as security for further breaches. It would have been otherwise, had it been merely for the payment of money. Abernathy. (Van Antwerp v. Ingersoll, 2 Caines' Rep. 107. 1 R. L. 515, 516.) V. Motion denied. ABERNATHY against ABERNATHY. ASSUMPSIT, by payee against maker, on three promissory In an action notes; the first, dated Feb. 21st, 1816, for $200; the second, of assumpsit, April 19th, 1819, for $39 50; and the third, Jan. 1st, 1820, for brought in this $28. The plaintiff's proof, on the trial, was, that the note of $39 50, was given on a full settlement of accounts between the parties. plaintiff recover $50 only, he is not enti tled to costs; but must pay costs to the de fendant. And the costs, on motion, will be set off against the plaintiff's damages. The defendant proved a promissory note of $600, given by the plaintiff to him, dated Nov. 5th, 1816; that when this was given, the note of $200 was paid, and the plaintiff, not having it present, agreed to destroy it; but nothing was claimed to be due on the other note for $600, which was introduced merely as a part of the transaction, and to show tion in this a payment of the note of $200. Payment by the defendant counts of the If in an ac court, the ac parties, proved at the trial, exceed $400, and the plaintiff recover a sum not exceeding $50, whether he is entitled to costs, or must pay costs to the defendant? Quære. The proviso to the 1st section of the $50 act, which denies jurisdiction to a justice of the peace, of matters of account, when the sum total of the accounts of both parties, &c., amounts to $400, extends to those accounts, only, which are open and unliquidated between the parties. When they have been settled, the balance alone is the account between them. And unless this balance, with the other accounts, exceed $400, a justice has jurisdiction. Accounts, as used in the proviso to the 1st section of the $25 act, have the same import as in the proviso to the 1st section of the $50 act. So in the proviso to the 5th section of the act concerning costs. Accordingly, where on the trial of a cause at the circuit, the plaintiff proved a note of $200 against the defendant, who then proved a note of $600 against the plaintiff, and that, when the latter was given, the plaintiff agreed to destroy the former; but the defendant claimed nothing as due upon the latter; held, that neither of these notes could be considered accounts between the parties; and the paintiff having recovered $50 upon other claims; held, farther, that if the plaintiff could be entitled to costs in this court, on the ground that the accounts of both parties, proved at the trial, amounted to $400, neither of the said notes could be considered as part of such accounts. VOL. II. 53 |