Tillotson v. Cheetham, 3 Johns. 95

Tillotson v. Cheetham

3 Johns. 95 | N.Y. Sup. Ct. | 1808

Kent, Ch. J.

delivered the opinion of the court. This is a motion for leave to amend the record of judgment, upon the execution of a writ of inquiry of damages, in this cause. The final judgment was given in November term, 1806, and a writ of error was thereupon issued, and in February, 1807, duly returned into the court of errors, with a transcript of the record annexed. At the last session of the court of errors, errors were assigned, and among others, that by the record, it appeared, that an imparlance was given to the defendant, and a continuance entered from November term, 1805, to November term, 1805, before the court at Albany, and that interlocutory judgment was thén and there entered. To this assignment of errors, a joinder was put in, alleging, that there was no error, and in. this situation, the cause stood in the court of errors, at the time of making the present motion.

It is evident, that the record itself, in judgment of law, as well as in fact, remains in this court, and that only a transcript is sent up with the writ of error. "This is the direction of the act, organizing the court for the correction of errors. (Laws N. Y. v. 1. p. 184.) This court may, therefore, amend the original record, notwithstanding a transcript of it, is in the court above, and in the case of Tully v. Sparkes, (2 Ld. Raym. 1570. 2 Str. 869.) it was not only so ruled in the court of K. B. after solemn argument. *99but the amendment was made, in matter of form, after argument vp°n joinder in error, in the court above, and with the unequivocal approbation of that court, who allowed the transcript to be amended, according to the amended record in the K. B. That case is so perfectly in point, that it seems to me, to put an end to all doubt about the propriety of granting the present motion. The case of Grenville v. Smith, (Cro. Jac. 628.) and the several cases cited in 1 Roll. Abr. 208. l. 45. 50. and 209. l. 15. 25. prove, that this decision in Lord Raymond, was in strict conformity with the ancient practice, and that the court of errors used to give the like effect to amendments. The subsequent cases of Petrie v. Hannay, of Doe v. Perkins, (3 Term, 659. 749.) and of the Lessee of Lawlor v. Murray, (Schoales & Lefroy, 75.) show that the practice is still familiar under the English law, after error brought, and after issue joined in the court of errors. This practice of amendment, rests in the sound discretion of the court, and is extremely conducive to the furtherance of justice. It would be disgraceful to our judicial proceedings, if mere clerical mistakes, in matters of form, were not susceptible of a ready redress, or if they were permitted to defeat a recovery, upon the merits of a cause. The court for the correction of errors, under the influence of a liberal disposition to correct mistakes in form, permitted even the transcript of a record to be amended in that court, and directed the amended transcript to be sent to this court, to the end, that the original record remaining here, might be amended. (Price v. Evers, Coleman's Cases, 41.)

The court are of opinion, accordingly, that the motion ought to be granted, upon the payment of the costs of this motion; and if the writ of error be discontinued, or non press'd in consequence of. the amendment, upon payment, also, of the costs in error.

Rule granted.