Borland v. Stewart

4 Wend. 568 | N.Y. Sup. Ct. | 1830

By the Court,

Marcy, J.

If the most trivial mistakes of a justice in making out an execution were to be adjudged fatal on the ground of variance, parties who act in good faith on the presumption that the justice has done in a proper manner what it was his duty to do, would be in a much worse condition than they would be if the proceedings wete. *569in a court of record. The errors not only of the officers or courts of record, but those of the agents of the parties, their attorneys and counsellors, are at once rectified without injury or serious inconvenience to those who have committed them. Had an officer of this court, or the attorney of a party made so trifling a mistake at issuing an execution as was made by the magistrate in this case, the court would not hesitate to give validity to the proceedings under it by allowing an amendment. What would be clearly amendable in a court of record, ought, in my opinion, to be considered a mere irregularity in the proceedings of a justice’s court. Discrepancies between the judgment entered by the magistrate and the execution issued thereon, have been permitted to be explained by his testimony, when they come collaterally in question. In Jennings v. Carter, (2 Wendell, 446,) the court intimate that the variance of a day between the time when the judgment was rendered and when it was stated in the execution to be rendered, and the omission of the Christian names of the plaintiffs in the judgment and inserting them in the execution, would not render the execution void. It was there said that the court acted correctly in receiving testimony to explain such discrepancies. If the common pleas of Sullivan had, in this case, admitted the execution in evidence, after the testimony of the justice who issued it, they would not have gone further than the Monroe common pleas did in the case of Jennings v. Carter: and this court thought there was no error in] that case. It would be judging quite too rigorously of the proceeding of a justice’s court to hold that the magistrate and the party should both be responsible as trespassers for all the acts that should be done under an execution which might happen to vary'in the smallest degree from the judgment; and yet, so they undoubtedly would be if all explanation of errors should be shut out. Where the difference is clearly a mistake, and of such a character as to lead to no confusion or misapprehension, it could answer no good purpose to refuse a party *570permission to show the mistake, nor would it, in my opinion, produce any mischief to grant such permission.

Judgment reversed, and venire de novo.

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