Peck v. Sill

The statute of amendments does not authorize an alteration, which varies the ground of action, and introduces a new party on the record. Therefore, a writ against the copartnership of H, & R., canüot be amended, by erasing the name of R., and making it a writ against H. in his individual capacity. Such alteration, if made, would terminate an attachment under the original writ, and dissolve the lien created by it. That such an alteration has been made, may be proved by parol evidence, in a subsequent suit between other parties, for the purpose of evincing a dissolution of lien.

THIS was an action of ejectment, tried at New-London. January term, 1819, before Swift, Ch. J. and Brainard and Chapman, Js. On the 6th of August, 1817, the plaintiff prayed out a writ of attachment against William Hall and Robbins, of the city of New-York, describing them as merchants in company? under the firm of Hall Robbins, on which the land demanded was attached as the property of Hall. Afterwards, on the same day, the defendant attached the land as the property of Hall. Both writs were returned to the county court; and the suits were continued to the term of that court, in March, 1818 ; when they went into judgment. Executions were taken out, and duly levied on the land. The defendant was in possession. On the trial of the present action, in the superior court, the defendant was permitted to prove, by parol evidence, that the county court suffered the plaintiff to amend his writ against Hall & Robbins, by erasing the name of Robbins, and making it.a process against William Hall only. The court charged the jury, that this amendment or alteration of the plaintiff’s writ, discharged the priority acquired by his attachment; and a verdict was given for the defendant. The plaintiff moved for a new trial, on the ground of the admission of improper evidence, and of a misdirection. contended, 1. That the county court had power to allow the amendment. The words of the statute, (a) which is a beneficial oné, and ought not to receive a narrow construction, are broad enough ® ® to include this case. There is no restriction upon the power of the court, in relation to amendments “ in civil causes pending before them,” except their own “ discretion.” 2. That parol evidence was inadmissible to prove that the amendment was made. The process and judgment, on the face of them, are regular and valid. Now, can parol evidence be received to shew, that they are void ? A judgment cannot be impeached collaterally, except on the ground of fraud. Swift" s Ev. 14. 3. That the effect of the amendment is not to discharge, the lien created on the estate, by the attachment. If the judgment is valid, it must be valid throughout ; and it will draw after it all the incidents of a valid judgment. If the amendment has any operation, it will reach back to the inception of the process. Third persons cannot complain of this. The subsequent attaching creditor had all the notice of the lien, which he would have had, if no amendjnent had been made. Cooley v. Sanford, Kirb. 103. 105. 1. That the statute of amendments provides for the correction of such defects and mistakes only, where the parties are misdescribed in the writ, or where the title or claim is imperfectly or defectively stated in the declaration ; but the identity of the party cannot be destroyed, and the nature of the action changed, by an amendment. Ross v. Bates, 2 Root, 198. Freeman v. Beadle é¿ al. 2 Root, 492. Tabrumv. Tenant, 1 Bos. & Pul. 481. Here, the party defendant, and the ground of action, were changed ; William Hall being a distinct person from the copartnership of Hall & Robbins ; and a debt against William Hall being a distinct ground of action from a debt against Hall & Robbins. 2. That conceding the power of the court to allow the amendment in question ; yet the effect of it was, to discharge the lien on the land, acquired by the attachment. The statute regulating attachments (b) requires, that “ when any real estate is taken, the officer serving the writ shall leave a true and attested copy thereof, and a description of the estate taken, at the town-clerk’s office, in the town where the estate lies.” But in this case, a true copy of the writ, on which the judgment was rendered, was never left at the town-clerk’s office. When the plaintiff amended his writ, so as to make a new one of it, he, of course, gave up his hold upon the property attached. 3. That parol evidence was properly received to shew the amendment. The record shews only what jhe writ and declaration were after amendment. What they were previously, as well as the motion to amend, and the decision of the court upon that motion, must be proved aliunde. At any rale, the plaintiff cannot complain of the admission of such evidence. He must have introduced it to establish his priority of lien, /if the defendant had not. The plaintiff could establish a priority of lien, in no other way, than by shewing a process against William Hall, in his individual capacity, prior to the service of the defendant’s attachment. This could not be done, without proving the amendment, as the defendant proved it, assuming, that when made, it would have relation to the inception of the process.