Porter v. Goodman — 1 Cow. 413

Majority

p. 413

Addison Porter and two others against Goodman and Goodman.

Headnote

^ amen_ ded by adding plaintiff, and correcting the place at which 14 ter an action of trespass iJvy undent^ Bu* tius payment of the Emotion and the action. the court would refuse to amend a fi. /«• jssued a

confession, upon a bond and warrant of attorney, which had been obtained fraudulently.

The judgment was upon a bond and warrant of attorney; and, in issuing the fi.fa. the attorney for the plaintiff had, by mistake, omitted the name of Addison Porter, and it was, by a like mistake, tested at the city of XJlica, instead of the Academy in TJlica. The fi.fa. had been levied, and trespass brought by the defendant, on the ground that such levy was under an execution irregular and void.

I. Powers A. Spencer, moved to amend.

They remarked, that thiá1 was a matter resting in the discretion of the Court,^[1] In Bissell v. Kip,^[2] this Court held an execution amendable, where too large a sum had been inserted. In Cramer v. Van Alstine,^[3] they amended by insert-Eng a correct return day. In Phelps v. Ball,^[4] a fi.fa. was

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amended, by correcting two mistakes, after it was returned satisfied: and in McIntyre v. Rowan,^[5] a ca. sa. was amen-: ded, by adding the testatum clause, after the defendant had been arrested. In 2 Archb. 246, it is said that executions may be amended in names and sums, even after they are executed ; and he gives the authorities. And in Holmes v. Williams,^[6] an amendment of a ca. sa. was allowed, even after an action of false imprisonment had been brought. Amendments are much a matter of course; though, in form, we are obliged to move the Court. They will always amend where there is any thing to amend. by, and here we have the judgment record.

S'. J. Sherwood <$-• Sudam,

contra, produced affidavits, from which, as they insisted, it appeared the bond and warrant of attorney had been fraudulently obtained, and ought to be set aside. They accordingly moved to set aside the judgment, for that reason, and the execution for the irregularity pn the face of it. They remarked that, at any rate, they should rely upon the want of good faith disclosed by the affidavits, as a sufficient ground of opposition to the amendment : that, in the case cited from 3 Caines, there was no pretence of hardship. The Court will never exercise their discretionary power of amending, unless in furtherance of justice, and not to oppress the party. The cases cited were free from all iniquity in the party applying to amend.

Powers,

said the Court would never allow considerations of this kind to operate against an amendment. The attorney, or officer, who makes out the process, is liable tó an action for the mistake. Knowing nothing of the equitable circumstances which exist between the parties, he ought, notwithstanding, to be protected. _

On hearing the affidavits, upon both sides, we are unanimous in thinking that the facts disclosed do not warrant the allegation of bad faith. If the defendants had made out a strong equitable case against the plaintiffs, it would, perhaps, be a good reason for refusing the amendment. But we all think there is no foundation for

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the objection, in point of fact. The amendment must be J ’ r granted, on payment of costs.

c^^f^eSo as to include the a°t had been drawn for the payment of costó generally,

Rule to amend granted.

Oct. 24. This morning, Sudani mentioned, that the rule to amend had been drawn in the usual form, on payment of costs, which he supposed would import no more than the costs of the motion: that the payment of the costs of the ac- y „ , . . tion, brought for the irregularity, ought also to be made a condition of the amendment.

Powers, said the action was prematurely brought, and the party ought to take the consequence.

The rule must be so modified as to include the costs of the action.

Rule accordingly.