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Updegroff v. Judges of the Court of Common Pleas

3 Cow. 31 Court N.Y. Sup. Ct. English

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p. 31
In the matter of Updegroff and others against The Judges of the Court of Common Pleas of the county of Ni agara.

Headnote

Debt, in the Court below, by Potter, assignee of a gaol bond, against Updcgroff and two others, the obligors. The declaration set forth a ca. sa. in favour of Potter against Up* degroff, the arrest of Updcgroff, the execution of the bond, with the condition, which was, that Updcgroff should remain a true and faithful prisoner, and should not, at any time, or in any wise, escape or go without the limits, $■£. The declaration then averred an escape, whereby the bond became forfeited, &c. Plea, nil debent. Verdict, “ that the defendants do owe, ifyc. and they assess the damages of the said plaintiff on occasion of thedetention of the within debt, over and above, &c. to $830,05.” On this verdict, the plaintiff entered up judgment and took out execution for the whole damages. A motion was made in the Court below to set it aside, which was denied ; and now,
In an action on a bond for the performance of covenants, and an assignment of breaches, the execution will not be set aside for a mere informality of the verdict in not assessing damages for the breach, but referring the damages to the detention of the debt.
J. C. Spencer,
moved for a mandamus requiring them to grant the motion, on the ground that there was no assignment of breaches, nor writ of inquiry of damages; or, at any rate, if the declaration did assign breaches, the verdict did not assess damages upon the breaches. He cited Van Ben thuysen v. De Witt & others, ( 14 John. Rep, 213 ) Caverley v. Nichols, (id. 189) Hardy v. Bern, (5 T. R. 636) Welch v. Ireland, (6 East, 613) and 2 Saund. 187, n. 2.
J. Platt, contra,
said that the objection to the proceedings below, if well founded, was mere matter of error, not irregularity, and could not be corrected summarily. We have a right to be heard in a more solemn form : the party should have brought his writ of error, upon which, if the decision of this Court should be against us, we might go to the Court • of Errors. But the assignment of breaches was sufficient. The parties went to trial upon that assignment, and the ver»
p. 32
diet was rendered upon it. The casps cited are those w'herg no assessment of damages was had.
Spencer., in reply. The verdict has no relation to the breach assigned. That was for the escape. The verdict is for the detention of the debt. It is the same, then, as if nq assessment of damages had been made in the cause.

The assignment of breaches was sufficient; but it is said the verdict does pot pursue the assignment. The parties went to trial upon the breach assigned, and we cannot help seeing that the omission in the verdict to refer tq She breach in assessing damages, must have arisen from a mere clerical mistake in the entry, whiph is amendable by the Court below. Ttje case differs altogether from those cited. In those cases there was no atlpmpttp assign breaches. Even on error brought, the least we could do would be to send this verdict back to be amended, or amend it oursplves.

Motion denied;