29 N.H. 237 | Superior Court of New Hampshire | 1854
This was an application to the court of common pleas of this county, for the correction of an alleged error in its records. It is alleged that it is an error effected by the fraud of the defendant, injuriously affecting the rights of the petitioner. We need not stop to inquire, in this case, whether if there be such error in the record as the petitioner alleges^ it is a case requiring the favorable exercise of the discretion of the common pleas, in order to protect his rights, or whether he may not safely be left to pursue his remedies by an impeachment of the judgment of Lord v. Kinnear, collaterally, it being a judgment to which the plaintiff is not a party. There is a motion by the defendant as well as by the petitioner, for an amendment, if the justice of the case demands it. The exercise of the discretion of the court, in making a proper amendment, is invoked
Aside from all technical questions, wé propose looking into the facts of this case, to learn whether it is one calling upon the common pleas to interpose an exercise of its power in the correction of the record, for the advancement of the ends of justice in the case in question. There would seem to be no doubt that the defendant, Lord, had a just claim against Kinnear for a greater amount than that for which judgment was finally taken, and that he brought an action for the recovery thereof, intending to cover his whole claim; but that through some mistake or misapprehension at the time, as to its amount, the counts in his declaration were insufficient to, embrace the whole of it, and the ad damnum stated in the writ was not equal to it in amount.
At the term of the court when the action was entered, upon discovery of these facts, and to enable Lord to obtain a proper and valid judgment against Kinnear for the whole amount due him, Lord and Kinnear entered into an agreement for an amendment of the writ and declaration, by the increase of the ad damnum from $2,000 to the sum of $2,900, and by inserting a count in the writ for $1,500, for money had and received, instead of $700, as it stood originally in the declaration.
According to the admissions in the written agreement, amendments were drawn in conformity with the agreement of the parties. The finding of the commissioner, in the report sent up to us, shows only that amendments were drawn which were signed by Lord and Kinnear. And it is apparent that the writings thus signed were only agreements for amendments, but not amendments in fact. And the letter of the clerk shows that there was no amendment, in fact,
As between the parties to the judgment, it cannot be doubted that it was both competent and proper to make all the agreements and amendments stated and found by the case. An enlargement of the cause of action set forth in the declaration, or of the ad damnum in the writ, would constitute no vice or error in the record, of which either party to the record and the agreements could in any event avail himself. But Laighton, the party who complains of the alleged wrong of Lord, and asks the aid of the court, was no party to the agreements of Lord and Kinnear. And the agreements and amendments had the effect, if carried out, to enlarge the claims of Lord, embraced in his suit, by the introduction of a new cause of action into it, for which he had no right of recovery, as his action originally stood in court. And it was intended to cover claims accidentally, but nevertheless, in fact, omitted to be inserted in the suit at its commencement. The goods and estate of Kinnear were attached in the action of Lord against him, and also, subsequently, in another action in favor of the petitioner against Kinnear, and subject to Lord’s prior attachment. This order of attachment gave to Lord a priority of right over Laighton to the goods attached, to the amount of the damages justly due him, upon the claims embraced in his writ and the costs of the action, and no more. Moreover, as against Laighton and any other subsequent attaching creditor, he had a further right to make any amendment not inconsistent with his original cause of action, and not changing or enlarging it.
But an amendment changing the form of the action or substituting or adding a new count, will not discharge bail, nor the bailee of goods attached, from his responsibility, provided the action be still for the same demand. Miller v. Clark & a., 8 Pick. 412; Ball v. Clafflin, 5 Pick. 303; Wright v. Brownell, 3 Vermont Rep. 435. The obligation of bail and receipters is to be regarded as entered into with a full understanding of the existence of the right, on the part of plaintiffs, to amend, and of the power and duty of the court to allow the exercise of that right in all proper cases. And it is clear that neither bail nor bailees of property attached nor subsequent attaching creditors have any right, in law or justice, to complain, when the amendment made does not, in fact, prejudice their rights by increasing the responsibility of bail or receipters, or tend to diminish the surplus property to which such subsequent attaching
In Seely v. Brown, 14 Pick. 177, it was decided that an amendment of a declaration embracing a new demand will not discharge bail, provided the judgment in the action be rendered only on the demand originally embraced in it. In that action the exact ground upon which the defendant rested his defence was, that the amendment allowed by the court introduced into the declaration a new and additional ground of action. The court there say : “ Now if the amendment might embrace a new demand, yet, as judgment was rendered on the original demand only, the bail are not liable but to that extent, and cannot, therefore, be injured by the amendment. To hold the bail discharged, under these circumstances, •would be going quite too far, and beyond any of the decisions cited by the defendant’s counsel, which have gone far enough in limiting the privilege of amendment, and ought not to be extended.” It was further remarked that, “ in Hill v. Hunnewell, 1 Pick. 192, it was decided that in an action where an attachment had been made, and that action and all demands had been referred to arbitration, and judgment had been thereon recovered, the mere fact of entering into such a reference dissolved the attachment, and that it would likewise discharge bail, for otherwise subsequently attaching creditors and bail might be injured; but if it had been shown, in that ease, that no new demand had been admitted by the referees, then the subsequent attaching creditors could not have been injured, and the reason of the decision would have failed, and the plaintiff would have been allowed, in that case, to show that no new demand had been proved before the referees, nor allowed by them.” This latter view is confirmed by note (2) of the reporter, appended to the report of the case of Willis v. Crooker, before cited, where it is said that the burden of proof lay on the plaintiff to show that nothing was added to the amount of the judgment in consequence of adding the new counts.
A proper application of these principles will determine whether the amendments made in the present case dissolved the attachment made in the service of the plaintiff’s writ. In the place and stead of the original second count, which was a count for money had and received, for $700, was substituted a count for $1500, for money had and received. This general count for $700 was designed, originally, to cover all the claims of Lord against Kinnear, which were of a character proper to be given in evidence, under such a count. These claims, it is to be inferred from the case, were found to be of a greater amount than $700, and for that
In this state of the case, the execution was taken from Towle, the officer, and returned to the clerk, and the clerk thereupon made out and issued an execution for a sum corresponding with the amount of damages and costs for which judgment was finally entered. It is to be remembered, also, that the action of Lord v. Kinnear was not answered to, but was defaulted. In that state of the case, the plaintiff;’ was not obliged to enter up a judgment for any sum beyond what it was fit and proper, and for his interest to do. In short, he had a right to pursue such a course, in taking judgment, as was found to be in conformity, and consistent with, and not detrimental to the rights of the defendant; and notwithstanding the mere fact of the amendment made, enlarging his right to a judgment as against the defendant in the action, he was, nevertheless, in no wise bound to take judgment for a larger sum than he was originally entitled to, as against the defendant in the action ; and, we think, not as against the petitioner and subsequent attaching creditors. Under the amendment, he might or might not take a larger
Upon the facts of this case, we are of the opinion that the alteration of the record was entirely proper, and justified by the circumstances attending it. Here is no evidence that warrants the conclusion that the record as originally
All the papers that were filed in the case, were placed in the hands of the counsel for Laighton, for his and his client’s inspection and approval, and as no objection was stated on the return of the papers, but the counsel of Lord was told he might take out his execution, it might well be inferred that no objection was discovered, or none was intended to be insisted upon. And when we consider that afterwards, when it was found that Laighton did object to the enlargement of Lord’s claim, by way of the amendment made, the only alternative left for Lord was to restore his claim to its original amount, and take judgment and issue execution therefor, or jeopardize his entire debt, we think the course pursued by him was justifiable. It is entirely probable, that if the objection had been made upon the return of the papers to Lord’s counsel, which was finally stated to the officer, that the judgment would have been entered originally for the sum only to which he had a right, as against Laighton. And we are fully of the opinion that neither justice, law, nor the strict rights of the parties re-' quire that we should hold him forever barred of the right to enter up a judgment for that sum, by the mere fact that a judgment had been entered up for too large a sum, under the circumstances of this case. And if, as we think, the judgment was properly entered finally, according to the strict right of Lord, it is plain that there would be no propriety in an order of the court of common pleas directing such an amendment of the record as the petitioner desires.
In this view of the case, we need not determine a question which might otherwise very properly be considered, namely; whether the common pleas can be properly called upon to correct the record of a judgment between Lord and Kinnear, upon a petition to which Kinnear is in no wise made a party, and that, too, where, as between the parties litigant, it may well be questioned whether the judgment
We are all clearly of the opinion that the prayer of the petition in this case must be denied, and the
Petition be dismissed.