5 Watts 176 | Pa. | 1836
The 'decree had, by relation, become part of the recognizance; and to alter the one, was to alter the other. To do that, required a stretch of power as palpable as that which was the subject of judicial animadversion in Catlin v. Robinson, 3 Watts 373. There, a title was'attempted to be destroyed; here, a debt is attempted to be fixed on a party by means of a contract into which he had not entered, and this, too, after the money had been paid to another under a decree of the same court which attempts to fix him with payment of it a second time. It certainly ought not to repair the consequences of its blunders at his expense. But were the money still in his hands, nothing in the guise of an amendment could make him liable on a recognizance he had not acknowledged; and to alter an instrument is to make it a new one, because the alteration would give it a new legal effect. For this reason an altered instrument is always laid as a new one in an indictment of forgery, no notice being taken of it as having existed before in another form. In a case like the present, to vacate the decree, would render it necessary to vacate the recognizance and take out a new one conformably to the alteration introduced; and when that could not involve the debtor in a mispayment, we see no reason why it might not be done. Even that, however, was unnecessary. The husband of the deceased daughter was tenant by the curtesy of the land and consequently tenant by the curtesy of the money into which it was turned; so that payment could be rightfully made but to him in the first instance, though in his own right and not as her administrator. All that remained to be done, therefore, was to exact security of him that,the principal, at his death, should be paid over entire to his child; and this the court ought to have done. The order to amend and the amendment made are vacated; and the decree, as originally pronounced and recorded, is affirmed.
Decree accordingly.
