Lawrence v. Cornell

4 Johns. Ch. 545 | New York Court of Chancery | 1820

The Chancellor.

The mistake is manifest; and if it had been suggested at the time, there would undoubtedly have been a provision inserted in the decree, that the petitioner should be deemed substituted for the plaintiff, so far as he had made any payments, on the elder mortgage, for the proper debt of the defendant, Matthews, or beyond his proportion df the burden. This appears to have been the ease as to a moiety of the sums of 70 dollars and 200 dollars, paid by him in 1817. The defendant, C., claims the benefit of substitution for the other moiety of those sums, on the ground of some alleged agreement with the plaintiff, at the time of the payment, and on the further ground, that the defendant M. ought to have no benefit from the payment. But the burden was equally chargeable upon the defendants, C. and M., and whatever rights he may have upon any agreement, (which this order will not prejudice) the benefit of substitution is only to be applied in a clear case, appearing from the proceedings in the cause.

The next question is, whether the decree can be rectified as to this omission, (appearing to have been unintentional and inadvertent) upon motion, without putting the party to the expense of a rehearing, which would consume a great part of the sum to be secured. The decree is not yet enrolled and signed, and I am inclined to think that, according to the English practice, the decree, though passed and entered, may be corrected before enrolment, on motion, iaa clear case, and where the insertion would have been of course; but there must be a separate, supplemental order, for the purpose. (Wyatt’s P. R. 155. Newland’s Pr 185, 186. 7 Vesey, 293. Lane v. Hobbs, 12 Vesey, 458.)

Order accordingly»