Doty, Hunt et al. v. Rigour & Co.

the weight of authority, both in England and in this country, favors the rule that such note will bear interest only from the time of demand made or of suit brought.

But, whatever may be the general rule, it may unquestionably be controlled by statute. The act of January 12, 1824, "fixing the rate of interest," prescribes "that all creditors shall be entitled to receive interest on all moneys after the same shall become due, either on bond, bill, promissory note, or other instrument of writing," etc. In Hill v. Henry, 17 Ohio, 9, it was held that "a right of action exists in the payee of such note, upon its delivery; and that from the time of delivery, the statute of limitations commences to run." It is not easy to see how this doctrine can be sustained, upon legal principles, unless the note be due upon delivery; and if due at its date, then, by the terms of the statute, it bears interest from that time. And so it was held by the Supreme 519] *Court of Arkansas, under a statute similar to ours. v. Chase, 4 Ark. 210.

Pullen

As the parties must be presumed to have contracted with reference to the statute, we think the terms of the instrument create an obligation to pay interest from its date.

Judgment of the district court affirmed.

BRINKERHOFF, C. J., and SUTLIFF, PECK, and GHOLSON, JJ., con

curred.

STEPHEN DOTY, J. E. HUNT, ET AL. v. J. D. RIGOUR & CO.

Where, in an action and confession of judgment under the code upon a bill of exchange with a warrant of attorney attached, the bill of exchange attached to the petition is for sixteen hundred dollars, payable to J. D., and the petition is in the names of J. D. and others, members of the firm of J. D. & Co., and describes the bill as for sixteen dollars, but asks judgment for sixteen hundred dollars, and interest, etc., and judgment is confessed on warrant of attorney and entered accordingly, in favor of the plaintiffs named in the petition, such error in describing the amount of the bill, and in the names of the parties plaintiffs, may, on motion, be corrected by ref erence to the bill so attached to the petition.

Where judgment is taken for more than is at the time legally due, the error may be corrected by remitting the excess.

The fact that between the date of the judgment and the amendatory proceed

Doty, Hunt et al. v. Rigour & Co.

ings, a petition in error is filed by the defendants in the judgment, does not prevent the corrections from being made; the rule under the code being the same as it was at common law, to wit, that amendments may be made at any time before a suggestion of diminution of record would be too late; that is, at any time before final adjudication on error.

Where it is shown to the supervising court by a copy of the amended record, that the corrections mentioned have been made, and the errors thereby cured, the judgment, as corrected, will be affirmed, but at the costs of the defendants in error.

PETITION in error to the court of common pleas of Delaware county. Reserved in the district court.

*On the 24th of July 1855, Stephen Doty, Morgan B. Doty, [520 and J. E. Hunt, gave their bill of exchange to J. D. Rigour, for sixteen hundred dollars, on Miles & Bartlett, of New York, payable in twenty days, at the office of Butler & Winter, of New York, waiving acceptance, demand of payment, protest and notice of non-payment, and authorizing a confession of judgment and release of errors.

On the 19th of September, 1855, Joseph D. Rigour and others, members of the firm of J. D. Rigour & Co., filed their petition against the Dotys and Hunt, counting upon a bill of exchange drawn by them, July 24th, upon Miles & Bartlett, of New York, for sixteen dollars payable at the office of Butler & Winter, in New York, etc. "Whereupon plaintiffs say there is due to them, from the defendants, sixteen hundred dollars, and interest since the 16th day of August, A. D. 1855, and six per cent. damages and one per cent. exchange," and ask judgment accordingly.

There is no averment in the petition of any transfer to J. D. Rigour & Co., of a bill payable to J. D. Rigour.

To this petition is attached the bill of exchange first above described, and by virtue of the authority it contained, judgment was confessed against said Dotys and Hunt, as prayed for in the petition, viz., for sixteen hundred dollars and interest, damages, and exchange, by an attorney appearing and answering for them, and releasing all errors. Judgment was entered upon the confession. at the same September term, 1855, in favor of J. D. Rigour & Co. October 5, 1855, the Dotys and Hunt filed their petition in error in the district court of Delaware county, to reverse this judgment assigning for error that:

1. The bill of exchange embodying the warrant of attorney was payable to J. D. Rigour, and not to J. D. Rigour & Co., and that

Doty, Hunt et al. v. Rigour & Co.

there is no allegation in the pleadings that J. D. Rigour & Co. owned the bill, or that the same had ever been transferred to them. 521] *2. The petition is upon a bill for sixteen dollars, whereas the bill filed is for sixteen hundred dollars.

3. The petition is upon a bill payable to J. D. Rigour & Co., whereas the bill filed is payable to J. D. Rigour.

4. The warrant filed did not authorize the confession of a judgment against plaintiffs in error on a bill payable to J. D. Rigour & Co.

5. The judgment includes exchange in addition to six per cent. damages.

On the 1st of March, 1856, the plaintiffs below moved the court of common pleas for leave to amend their original petition and judgment:

1. By striking out all the names of the parties plaintiffs, except that of Joseph D. Rigour.

2. By inserting in said petition a more accurate description of the bill of exchange therein mentioned.

3. By correcting the amount claimed in said petition.

4. Also to correct the judgment so as to make it conform to the contract attached to the petition and answer.

5. And if necessary to carry out said amendments, to file an amended petition containing them.

At the March term, 1856, of the common pleas, the cause was continued.

At the May term, 1856, said court sustained the motion to amend, and the amendments were made as asked for, by filing a new petition containing them. The motion to amend and the amendments were ordered by the court to be made part of the complete record of the case.

The plaintiffs below also, on leave of the court, at the term last mentioned, caused the answer to be amended so as to remit the exchange, which had been carried into the judgment.

Afterward, on May 19, 1856, the defendants in error filed, in the district court, a supplemental transcript of these amendatory proceedings, and also their answer in error, insisting that there were no such errors in the record as are assigned by the plaintiffs in 522] error; that by virtue of the warrant of attorney embodied in the bill of exchange, upon which judgment was confessed and rendered, the attorney who appeared for the plaintiffs in error, was

Doty, Hunt et al. v. Rigour & Co.

authorized to, and did, release all errors; and that all the errors complained of were cured by said amendatory proceedings.

The case thus presented was reserved for decision in this court.

H. B. Curtis & Scribner, and M. H. Mitchell, for plaintiffs in error. O. Bowen, and Olds & Burns, for defendants in error.

SUTLIFF, J. Formerly there was thought to be serious objections to any amendment of the records of a court. And while at common law all mistakes occurring before the judges during the term were amendable, they "were strictly required to record the parols or pleadings deduced before them in judgment; but they were not to erase their records or amend them, nor record against their enrollment." After judgment, when the proceedings were regarded as enrolled, the record was considered no longer subject to any alteration, and was held to import absolute verity. But owing to the frequent occurrence in records of slight clerical mistakes, it was found necessary as early as 14 Ed. III., c. 6, by statute, to provide that the misprision of the clerk "in writing one syllable or letter too much or too little," should not render the process null, but that the same might, when objected to, be duly amended. It was not, however, until the 8th of Hen. VI., c. 12 and 15, that the judges were allowed to amend what they in their discretion should regard the misprision of their clerk in their records. Although the more modern English statutes have been remarkably liberal in allowing amendments for the furtherance of justice, while the proceedings were in paper, those statutes have never been extended to the amendment of the record. And the English statutes [523 of amendment have generally been followed in this regard by the statutes of amendments of the most of the states, and with but few exceptions, until quite recently.

In many of the states at this time, however, there is a great confusion and want of unanimity in the decisions, owing to statutory provisions upon the subject of amendments.

The State of New York seems to have been among the first of the states to extend a liberal statute of amendments to the record. Her revised statutes of 1829 allowed "any defect or imperfection in matter of form, contained in the record," "to be rectified

and amended by the court in affirmance of the judgment," and that any variance in the record from any process, pleading, or

Doty, Hunt et al. v. Rigour & Co.

proceeding had in such cause, should be reformed and amended according to such original process, pleading, or proceeding.

It is provided by section 5, of chapter 181, of the code adopted by Virginia in 1849, that the court, or the judge thereof in vacation, may on motion amend any judgment or decree rendered, by correcting any mistake, miscalculation, or misrecital of any name, sum, quantity, or time, when the same is right in any part of the record or proceeding, or when there is any verdict, report of a commissioner, bond, or other writing whereby such judgment or decree may be safely amended, upon reasonable notice to the opposite party, at any time within five years from the date of the judgment or decree.

It is provided by the 137th section of our Code of Civil Procedure as follows:

"The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mis524] take in any other respect, or by *inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. And whenever any proceeding taken by a party fails to conform, in any respect, to the provisions of this code, the court may permit the same to be made conformable thereto by amendment."

The amendment of the record before us not being allowable at common law, necessarily depends for its validity upon this section of our code. The language of the provision might seem to give the courts the same right to amend after as before judgment. But evidently the common-law rules, and the maxim that the record imports absolute verity, should confine amendments, after judgment, to cases where there is something to amend by; while cases very frequently occur in which it is very proper to allow amendments before judgment, independent of any such restriction.

This distinction between the allowance of amendments before and after judgment, I think, will be found generally recognized by the decisions made under the statute of amendments of New York, referred to, and under the provisions of their code, which is similar to ours, as well as by the express provision of the Virginia code.