1808. CRAWFORD v. and one dollars and thirty cents, but did not say what these goods were. The defendant, in support of his motion for a new trial, has BARRY. urged several reasons; but the principal one is this, that the jury have greatly overvalued the goods, and by not finding what they were, have deprived him of the benefit, which the law allows him, of delivering them up to the plaintiff, instead of paying the estimated value. He has offered to deliver to the plaintiff all the goods in his possession; but the plaintiff declines to receive them, and insists on having the amount of the jury's valuation in money. It does not appear that this point has ever been brought before the court. It is probable, that in most cases the garnishee has either given up the goods without contest, or a debt due from the garnishee has been attached; in which case there would be no goods to give up. The court must now decide the construction of the attachment act, which was made so long ago as the year 1705. By the second section of this act, (1 St. Laws 60.) it is enacted, that "if an attachment shall "be made of goods or effects, and the garnishee plead he had แ no goods or effects in his hands at the time of the attach"ment, or any time after, and the plaintiff prove the contrary, "the jury in such case, being satisfied that the proof is plain "and full, shall find for the plaintiff, and say what goods or effects they find in the garnishee's hands; whereupon judg"ment shall be entered that appraisement may be made of "the same goods or effects so found by the jury, and a pre"cept shall be granted, requiring the sheriff to get the same "appraised; and if the garnishee will not produce them, then "execution shall be forthwith awarded for the value thereof according to the appraisement, to be levied upon the lands "and tonements, goods and chattels of the garnishee." By the fourth section it is provided that after judgment obtained by the plaintiff, he shall, before sale and after execution is awarded, find security that if the defendant in the attachment shall within a year and a day come into court, and disprove the debt recovered by the plaintiff against him, or discharge the same with costs, that then the plaintiff shall restore the said goods or the value thereof. It seems extremely clear that the object of this law was to procure for the plaintiff, satisfaction of his debt out of the 1808. CRAWFORD goods of the defendant; and that the garnishee was not to be liable, unless he refused to produce those goods after it had been found by verdict that they were the property of the de- v. fendant. The jury are expressly directed to say what goods or BARRY. effects they find in the garnishee's hands, in order that an appraisement may be made of them. It seems to have been the practice for the jury to value or appraise the goods; and to this I see no objection, although not strictly conformable to the act, because it saves the expense of a writ of appraisement. But there is no authority for the jury, by any mode of finding, to take from the garnishee the right of surrendering the goods and discharging himself from the obligation of paying the value. There is not one word in the act, which looks like an intent to charge the garnishee if he offers to produce the goods. The plaintiff's counsel have argued that it is extremely difficult to prove exactly what the goods are. This is very true; and to assist the plaintiff in that respect, it is provided by the act of 28th September 1789, (2 St. Laws 733) that interrogatories may be administered to the garnishee, which he shall answer on oath. It is objected that the plaintiff may have no confidence in his oath. To this I can only say, that if the plaintiff will go to trial, without taking the examination of the garnishee, and without satisfactory evidence to prove that the goods in his hands are the property of the defendant, and to shew what the goods are, he has no right to expect a verdict in his favour; because he affords the jury no sufficient ground to discharge the duty required of them by law. If the plaintiff will accept the goods offered by the garnishee, there will be no occasion for another trial. If he will not, I am of opinion that there should be a new trial to supply the defect of this verdict. YEATES J., SMITH J., and BRACKENRIDGE J. concurred. VOL. I. 3 Q New trial nisi. 1808. Saturday, December 31st. After suit brought, one of the defendants dies, and judgment is entered Error is Lessee of HILL against WEST and others. AN amicable ejectment was brought by the plaintiff against the defendants, to March term 1798 of this court, for some lots in Philadelphia, with a view, by trying the title, to determine to which party the commonwealth should grant a patent. A case was finally made for the opinion of the court; against both and after argument it was decided for the plaintiff, by three brought to a judges against one, and a judgment entered accordingly at December term 1804. A writ of error was brought to the high court; but for want of an agreement below to turn the case into a special verdict, the defendants lost the benefit of their writ, and suffered a non pros. They then brought error coram vobis, and assigned for error the death of Nicholas Young, one of the the death of defendants, in August 1798. superior court, where the writ is non on error coram vobis, one of the defendants before judg ment, assigned. Hallowell, on a former day, obtained a rule to shew cause why the record should not be amended by entering at this time Amendment a suggestion of the defendant's death, with the same effec: as if permitted, it had been done before judgment. by entering a suggestion of the defendant's the same ef fect as if it had been done before judgment. In support of the rule, he now argued that it was a matter of course to permit an amendment of this kind to attain the real death, with justice of the case. The stage of the cause at which the motion is made is immaterial; for amendments may be made at any time, if the record is in court; as, after error from a court in Ireland to a court in England; Clements v. Walker (a), or from a base court to a superior one. Daubers v. Pender (b). So after error for a verdict and judgment beyond the damages in the declaration, there may be an amendment by remittitur; Pickwoodv.Wright(c), Furyv.Stone (d); and the postea may be amended by the judge's notes; Doe v. Perkins (e). This very kind of amendment has been allowed. As where one of two plaintiffs died before interlocutory judgment, and the suit went on to execution in the name of both; after a motion to set aside the proceedings for irregularity, a suggestion of the death was permitted on the roll. Newnham v. Law. (f) The case of Hamilton v. Holcomb (g) is in point. The judgment was against two defendants, one being dead; error coram vobis brought, and amendment allowed. (a) 4 Burr. 2157. (d) 2 Dull. 185. (ƒ) 5 D. & E. 577. Dallas and Ingersoll, contra, admitted that amendments were generally subject to the discretion of the court; but that they were allowed only to attain the justice of the case; and that, in granting them, the court always seize upon equitable circumstances. They contended that the present amendment should therefore not be permitted, unless the party consented to terms. There was a difference of opinion among the judges of this court upon the merits; and the defendants lost the benefit of a revision, by an accidental omission in the case stated. They can never enjoy it, unless a reargument is made a condition of the amendment. And without such a condition, the amendment will not come within the spirit of the rule, under which all amendments are made; for equitable circumstances will be disregarded, and the justice of the case will not be attained. No case, however, except that of Hamilton v. Holcomb from New York, has ever gone so far as to allow the insertion of a new fact after error coram vobis. And the case of Newnham v. Law, there relied upon as in point, certainly is not in point; for error was not brought. Rawle in reply. The end of the amendment is to support the substantial justice of the case; which certainly is no way affected by one of the defendants dying before judgment. If we are to be laid under terms, it must be because justice demands it. But what justice is there in granting a second argument, when the court itself did not ask it, and upon a full hearing decided three to one? If it were done in this case, amendments after verdict could never be obtained without consenting to a new trial. The power of the court is almost self-evident. Bringing error does not prevent amendments; this is a settled principle. An amendment may be made consisting of this kind of new fact, according to Newnham v. Law. This is also settled. It follows then, necessarily, that bringing error does not prevent an amendment consisting of this new fact: that is the death of one defendant before judgment. TILGHMAN C. J. delivered the court's opinion. This is a motion to amend the record by entering a sugges tion of the death of Nicholas Young, one of the defendants, who died before the judgment. 1808. Lessee of HILL v. WEST. 1808. Lessee of HILL V. WEST. The cases cited in support of the motion are sufficient to shew the power of the court; and it is a power which, generally speaking, tends very much to the promotion of justice. But the defendants' counsel contend that it ought not to be exercised in this instance, because it tends to injustice. And how do they shew this? Why by proving that when they carried this cause to the late high court of errors, they were prevented from arguing the merits, because the case stated, on which this court decided, did not appear on the record. This being the case, they think it hard that they should not have a second argument. As the case was fully argued, and deliberately decided in the time of the late chief justice Shippen, the court cannot suppose that there is any thing like hardship in the defendants being bound by that decision. We must look to the consequences of the precedents we establish. If terms of this kind are imposed on the plaintiff in this action, with what propriety can they be refused in the numerous cases which must occur where amendments in form are asked after a trial of the merits? The court feel themselves bound to adopt amendments of this nature, as far as is consistent with their lawful authority. Nor will they be disposed to fetter them with conditions, except in extraordinary cases. They are of opinion in this case that the rule should be made absolute. Rule absolute. Saturday, December 31st. It is now a settled rule that interest Lessee of DILWORTH and others against SINDERLING BY and LEWIS. Y consent of parties, judgment was entered for the plaintiff in this ejectinent, subject to the payment of such sum is recover- of money as should be found due to Mr. Lewis, as executor able for 'mo- and residuary devisee of Benjamin Fuller. This question was advanced; tried at a nisi prius, before Mr. Justice Yeates, on the 6th instant; when the jury found for Mr. Lewis 2,936 dollars 40 cts. and this rule applies to loans made when the law was held to be otherwise. A trustee is entitled to interest upon advances made for the use of cestui que trust, to supply the deficiency of the fund. He is also entitled to an allowance for depreciated paper money paid him during the war, for rent of the trust estate, and for expenses incurred in erecting proper and necessary buildings upon it, although the cestui que trust was not consulted. |