Moore v. Tracy

7 Wend. 229 | N.Y. Sup. Ct. | 1831

By the Court,

Sutherland, J.

I am inclined to to think the errors appearing on the face of the record may be disregarded by the court as clerical or matters of form, not affecting the right or justice of the case. The mistake in the plácito. is obviously of that description ; it is the term of February, 1829, and states the court to have been held on the second Tuesday of that month, whereas it appears from the justice’s return, which constitutes a part of the record, that the original process was not issued by him until the 2d October, 1829, and the memorandum shows that the cause was not brought into the common pleaa until the October term, 1829. The term in the placita, therefore, was obviously a clerical error; it should have been October instead of February; so also was the day on which the court is stated to have been held the the second instead of the first Tuesday of February. The terms are fixed by law, and the court will take judicial notice of them; they will intend a mistake in making up the record, rather than suppose that the court sat on a day on which they could not legally sit.

The error in awarding to the appellee the costs in the justice's court, as well as in the court of common pleas, is not so obviously a clerical mistake, although without any explanation there could be but little doubt that it was so; for the appeal could not have been brought into the court of common pleas, unless the costs of the appellee before the justice had first been paid, and the presumption would be very strong that the common pleas could not have given the appellee judgment for those very costs, which they judicially knew from the return of the justice had already been paid to him. The certificate of the clerk who made up the record accounts satisfactorily for the mistake, and shows that the costs before the justice were neVer taxed or included in the judgment. This certificate, it is true, is by the stipulation of the parties subject to the same objections to which it would have been liable, if it, had been offered to be read upon the argument of the case ; and strictly, I think it could not have been received.

It is provided by the statute, 2 R. S. 425, that no judgment shall be reversed on account of certain formal defects partieu-. larly enumerated, and among others, “ for any informality in entering a judgment or making up the record thereof; ” and by a subsequent section it is enacted “ that the omissions, imperfections, defects and variances, previously enumerated, and all others of the like nature, not being against the right and justice of the matter of the suit, and not altering the issue between the parties or the trial, shall be supplied and amended by the court where the judgment shall be given, or by the court into which such judgment shall be removed by writ of error. Where it is obviously and clearly a mere clerical error or omission, the court will disregard it without making a formal amendment. Where it is not a mistake of that description, probably a motion should be regularly made for the purpose, upon due notice, like any other non-enumerated motion. Regularly, therefore, the certificate of the clerk cannot be regarded ; but we certainly ought not, under such circumstances, to reverse the judgment; we should, at all events, suspend the decision of the case until an application for the amendment could be made, and it seems hardly necessary to delay the decision of this cause for that purpose, when the explanation is before the court, though not in a strictly technical and formal manner.

Upon the merits also I am inclined to think the judgment ought to be affirmed. It is an action on the case to recover compensation for an injury inflicted upon the plaintiff! through a combination or conspiracy between the defendants and one Van Valkenburgh, to the following effect: Van Valkenburgh being destitute of property, it was agreed between him and the defendants that he should purchase upon credit from the plaintiff" and others, various articles of goods and chattels, and deliver them over to the defendants ; that he then should become insolvent, and with the aid of the defendants obtain the benefit of the insolvent act, and cheat the plaintiff and others out of their debts. The conspiracy was actually carried into effect, and the property of the plaintiff thus fraudulently purchased by Van Valkenburgh, was immediately, according to the agreement, delivered over to the defendants, or one of them, and has been by them disposed of to their own use. In Pasley v. Freeman, 3 T. R. 56, the broad and salutary principle was established that fraud, accompanied with damages, gave a good cause of action to the injured party, and that it was not necessary, in order to sustain the action, that the defendant should be benefitted by the deceit, or that he should collude with the person who was benefitted. 3 Bulst. 95. Cro. Jac. 386. Comyn’s Dig. Action upon the Case, Deceit, A. 1. Vide Ward v. Center, 3 Johns. R. 271, where Pasley v. Freeman is adopted as good law; and see also 6 Johns. R. 181, and 8 id. 23. Pasley v. Freeman, and the other cases, it is true, were cases of a false affirmation, made by the defendants to the plaintiff with intent to defraud, whereby the plaintiff was induced to sell his goods to an irresponsible person, and although the defendant derived no benefit from the fraud himself, the action was sustained. In the case at bar the defendants reaped all the fruits of the fraud, but had no personal communication with the plaintiff. The declaration does not charge them with doing any act to induce the plaintiff to sell his goods to Van Valkenburgh, but Van Valkenburgh must be considered their agent, and his false and fraudulent representations (that he intended and would pay for the goods, when it had previously been determined between him and the defendants, that he should immediately put them into the hands of the defendants, and take the benefit of the insolvent act) must be considered the acts and declarations of the defendants themselves.

Van Valkenburgh was a competent witness. The recovery in this suit would be no protection to him in an action brought either for the value of the goods or for the fraud. Perhaps a recovery and satisfaction in this suit might be a defence to a subsequent suit brought against him, but the satisfaction is contingent, and prevents his interest from being fixed and certain; it is analogous to the case of joint trespassers separately sued, where each may be a witness in the action against the other ; so an accomplice or a particeps fraudis is a competent witness, either to prove or disprove the fraud. In all these cases the testimony of such a witness should be listened to with great suspicion, but it is competent evidence, partly from the necessity of the case, and partly because he has no certain interest in the event of the suit. 1 Phil. Ev. 31, 2, 3, 4, 5. lWash. Virg. R. 187. 6 Johns. R. 135. 11 Mass. R. 498. 3 id. 559. 1 Day, 22. 3 Johns. Cas. 82. ' 10 Johns. R. 22. 1 id. 290. 16 id. 89. 7 Cowen, 346. 8 id. 60. The jury in this case were cautioned by the court to receive the testimony of the witness with great distrust, except so far as he was corroborated by other testimony; to a considerable extent he was so corroborated, and I think the evidence warranted the verdict.

The charge of the judge on the subject of damages was strong, and perhaps stronger than strictly it ought .to haVe been, in some of the general expressions in which he indulged ; but the error, if any, was not of such a character, and has not produced effects which make it incumbent upon us to reverse the judgment on that ground.

Judgment affirmed.