Laighton v. Lord

Any alteration of a writ to the prejudice of the rights of subsequent attaching creditors, will dissolve the attachment as against them. The enlargement of the ad damnum in the writ, or the alteration of the grounds or cause of action, by increasing the same, or by inserting new causes of action by way of amendment, by the agreement of the parties to the action or the order of the court, will not dissolve the attachment made in the service of the writ, as against' subsequent attaching creditors, provided the judgment taken he not for another cause of action than that contained in the writ, nor for a greater sum than that for which the party was entitled to a judgment upon his declaration at the date of the service of it. Where a party declared for $700 for money had and received, and afterwards, at the term at which the writ was made returnable, amended his declaration, by agreement with the defendant, by inserting a count for $1,500, for money had and received, and as a substitute for the count for $700, but finally took judgment embracing no greater sum upon this ground of action than he was entitled to at the date of service; it was held that the amendment worked no prejudice to the rights of the subsequent attaching creditors, and furnished no ground for holding the attachment dissolved, as it respected them. Whore a defendant was defaulted, and the plaintiff through mistake and misapprehension as to his rights and without fraud, caused a judgment to he entered up for a greater sum than he was entitled to take for a judgmentupon the counts in the declaration, as it stood at the commencement of the action, and purchased out a writ of execution, and placed it in the hands of an officer for levy and satisfaction upon the goods attached ; it was held that he might properly return the execution, and was entitled to have judgment entered for such sum as he was entitled to recover in the action as it originally stood, and to have an execution therefor, and that the court in which the judgment was rendered would not thereby be authorized to amend the record by entering up a judgment for the erroneous sum for which it was originally entered, upon the motion or petition of subsequently attaching creditors.

Tub petition in this case was filed at the September term, 1852, of the court of common pleas for this county, ■and was as follows: “ William J. Laighton of Portsmouth, in said county, trader, respectfully represents that on the 23d day of January last, Augustus Lord of said Portsmouth, merchant, sued out of this court his writ of attachment against one John Einnear of New Castle, in said county, shoe manufacturer, in which writ said Lord laid his damages upon the causes of action therein set forth, at $2,000. And after-wards, on the same day, your petitioner sued out a writ against said Kinnear, to secure a large debt due from said Kinnear to him, and the goods and estate of said Kinnear, which had been attached upon said Lord’s said writ, were thereupon attached upon your petitioner’s writ, and both of said actions were entered in this court, at the last term thereof, and were defaulted, and the said Lord, by a written agreement with said Kinnear, but without the knowledge of your petitioner, then and there amended his said writ, first by inserting in the second count in his declaration the words “ fifteen hundred dollars,” instead of the words “ seven hundred dollars,” the words'then standing in said declaration, and by increasing the ad damnum in said writ from two thousand dollars to two thousand eight hundred dollars, and afterwards by increasing, under a like written agreement, the ad damnum of said writ to twenty-nine hundred dollars, and by increasing the demand in his said writ to two thousand nine hundred dollars. And the said Lord thereupon caused judgment to be entered in his said action in his own favor for the sum of two thousand seven hundred and sixty-four dollars and ninety-two cents, with costs taxed at thirty-five dollars and seventy-eight cents, and within thirty days took out execution therefor, and placed the same in the hands of George W, Towle, Esq., the deputy of the sheriff by whom the said goods and estate of said Kinnear were originally attached, and thereupon the petitioner took out execution upon the judgment in his said action, and placed the same in the hands, of said Towle for service. And afterwards, without the-knowledge or consent of this petitioner or-of said. Kinnear, as this petitioner believes, said Lord withdrew his said exe->. cution from the hands of said Towle and returned the same to the clerk of this court, and caused the same to be de-. stroyed or concealed, and out of term, time and without, leave of court, falsely and fraudulently, and with intent to injure and defraud your petitioner, caused the entry of said judgment upon the records of this court to be altered and erased, and a new, false and pretended judgment for the sum of One thousand nine hundred and fifty-nine dollars and eighty-four cents, and costs as aforesaid, and on or about the 20th of March took out an execution thereon, and placed the same in the hands of the said Towle for service. Whereby and by the existence of said false and pretended judgment upon the records of this court, your petitioner is in danger of being injured and defrauded, and his attachment of the goods and estate of said Kinnear is in danger of being lost or defeated. Wherefore he prays your honors that the records of said court may be amended according to the facts and the truth, and that said false and pretended judgment, and all executions and process issued thereon, may be declared void, and that justice may be done in the premises.” At said September term an order was made that notice of the pendency thereof be given to said Augustus Lord, and the petition was continued from term to term until the February term of said court in 1854, when said Lord appeared by his attorney, and filed the following motion to the court- “ The said Augustus Lord moves the court, when the action referred to in' said Laighton’s petition is brought forward, so to amend said judgment in the action Lord v. Kin-near, as to correct aasy error therein, if any there be, so as to save said LorAs afechtaent.” The following evident?! was submitted to the court by the petitisaicp A; <. ’ tfcr pi'ayer of the petition, to wit; ¡L The deposition cA CMoggo °FA TawM, In which he stated the following facts, víe s That in March, 1852, he was acting as Mpavy pVrfij' of Rockingham county, and has been sines and is aow" A of as deputy sheriff he served the original writs, issaed cut of the court of common pleas in Rockingham county, in favor of Augustus Lord against John Kinnear, and in favor of William J. Laighton against John Kinnear; that executions in said actions were placed in his hands for collection. One, Augustus Lord v. John Kinnear, was placed in his hands by Mr. Hackett, about the middle of March, 1852, and two, within a few days after that, by Mr. Hatch, in favor of William J. Laighton v. John Kinnear. The amount of the execution of Lord v. Kinnear was for between $2,700 and $2,800 debt, and for about $90 to $100 costs. It remained in his hands a day or two, and then was taken once by Mr. Hackett, then returned to him, and shortly afterwards taken again. He never saw it after-wards. Instructions were given him by Mr. Hackett to satisfy the judgment out of property which was in his hands. In regard to satisfying it, he told Mr. Hackett he could not do it out of the property in his hands, as he only attached $2,000 in the original writ, and he could not go beyond that, as there were subsequent attaching creditors. He thought the execution was for Very much more than he was ordered to attach on the original writ. Mr. Hackett’s answer was that the execution was all right; that the writ had been amended by leave of court, by increasing the ad damnum of the writ. Subsequent to this conversation the execution was finally taken from his hands. The execution was withdrawn from him finally after the execution in favor of Laighton was placed in his hands for service. There was another execution, Lord 4;.- Kinnear, placed in his hands pretty soon after Laighton’s came in to. them; the amount of the debt was a little short of $2,000 ; the costs the same as on the-first execution. The Mr- Hackett above rererred to is W. H. Y. Hackett, Hsq. 2. A copy of so much of the writ in the action Lord v, Kinnear as is material, together with a copy of the memorandum on the back thereof, of the amount of debt and costs, certified by the clerk of the court of common pleas, was given in evidence, and is as follows: “ The State of New Hampshire, Rockingham, ss : [l. s.] To the sheriff of any county in this State, or his deputy. "We command you to attach the goods or estate of John Kinnear of New Castle, in said county, shoe manufacturer, to the value of two thousand dollars, and summon him, (if to be found in your precinct) to appear before the justices of the court of common pleas, to be holden at Exeter, in said county of Rockingham, on the second Tuesday of February next, to answer to Augustus Lord of Portsmouth, in said county, merchant, in a plea of the case, for that the said Kinnear, at said Exeter, on the day of the date hereof, being indebted to the plaintiff in the sum of fifteen hundred dollars, it being the balance of the plaintiff’s account against said Kinnear for flour, goods, wares and merchandize, by him before this date, sold and delivered to the defendant, and at' his request, and then and there, in consideration thereof, promised to pay the plaintiff the same sum on demand. Also, in a plea of the case, for that the said defendant, at said Exeter, on the day of the date of this writ, being indebted to the plaintiff in the sum of seven hundred dollars, for so much money by the defendant before that time had and received by the said defendant to the plaintiff’s use; in consideration thereof then and there promised the plaintiff to pay him that sum on demand.” “ Augustus Lord v. John Kinnear. February term, 1852. Plaintiff’s costs. Writ,..............................$1,00 Service, ................. 91,33 1,20 Entry,..... 1,00 Travel,_____ 1,25 Attendance, 95,78 Debt,..........................$2,764,92 Augustus Lord, by W. H. Y. Hackett, his attorney.” 3. The petitioner also gave in evidence copies of agreements filed in said action, Lord v. Kinnear, certified -by the clerk, which were as follows, viz : 1. “ State of New Hampshire. — Rockingham, ss. Court of Common Pleas, February Term, 1852. Augustus Lord v. John Kinnear. The parties hereby agree that the plaintiff may amend the second count in his declaration in the above entitled action, by inserting fifteen hundred dollars instead of seven hundred dollars, the sum now inserted in said count. And that the plaintiff may amend the said demand in said writ by adding next after the words £ two thousand,’ the words £ eight hundred,’ before the word £ dollars,’ so that the said demand shall read, £ two thousand eight hundred dollars.’ Augustus Lorp, John Kinnear. A true copy, attest— I. B. Hóitt, Clerk.” %, « State of New Hampshire. — Rockingham, ss. Court of Common Pleas, February Term, 1852, Augustus Lord v, John Kinnear. The parties hereby agree that the plaintiff may amend the second count in his declaration in the above entitled ac« tion, by inserting fifteen hundred dollars instead of seven hundred dollars, the sum now inserted in said count. And that the plaintiff may amend the ad damnum in said writ by adding next after the words 4 two thousand,’ the words 4 eight hundred,’ before the word 4 dollars,’ so that the ad damnum will read 4 two thousand eight hundred dollars.’ Augustus Lord, John Kinnear. A true copy, attest— I. B. Hoitt, Clerk" 3. 44 State of New Hampshire. — Rockingham, ss. February Term, Court of Common Pleas, 1852. Augustus Lord v. John Kinnear. The parties agree that the plaintiff may amend his account by inserting after the words 4 to the damage of, as he says, two thousand,’ the words 4 nine hundred,’ before the word 4 dollars,’ so that the ad damnum will be two thousand nine hundred dollars. John Kinnear, W. H. Y. Hackett, Plf’s Att’y.’’ 44 Rockingham, ss. Court of Common Pleas, February Term, 1852, Augustus Lord v, John Kinnear, by increasing the ad damnum to two thousand nine hundred dollars, and by inserting the words 4 nine hundred ’ after the words 4 to the damage of the said plaintiff, as he says, the sum of two thousand,’ and before the word 4 dollars.’ W, H. Y. Hackett, Plf’s Att’y, A true copy, attest — ■ I. B. Hoitt, Clerk." 4, The original writ filed in said action, corresponding with said certified copy, was given in evidence, together with a memorandum on the back thereof, of the costs and debt, in said action, the indorsement and memorandum on-said writ being as follows: “Augustus Lord v. John Kinnear. Writ,................................. $1,00- Service,............................... 91,33 Entry,............. 1,20 Travel,............................... 1,00 Attendance,........................... 1,25 $95,78 Debt, $1959,84” The appearance of said figures $1959,84 clearly indicated that an alteration had been made therein, some other figures having been first written in their place and the alteration made partly by erasure and partly by writing figures as they now stand over those first written, and the right hand figure having been apparently written originally 2, and altered to a 4, and the next figure towards the left having been apparently written originally 7 or 9, and altered to an 8, and the alteration of the other figures being so made as render it doubtful what those figures were, as originally written. 5. The docket of the court of the February term, 1852, W-as put in evidence, in which, are the following entries, un» der this action: a 597. Augustus Lord v. John Kinnear. Hackett. Default. Judgment for debt,.....$1959,84 Costs, ,........................ 95,78 Execution, March 17, 1852,” The appearance of the paper at the place where said figures, $1959,84, are written, clearly indicated that other fig» ures had been previously written at that place and erased by abrasion of the paper. Evidence was produced to the court shewing that the petitioner caused the property attached on the writ Lord v. Kinnear, to be attached on a writ in favor of the petitioner v. said Kinnear, subject to the attachment in Lord’s suit, and prosecuted said suit to judgment and execution, against said Kinnear. William H. Y. Hackett, counsel for Lord, testified that he had no conversation, to his recollection, with George W. Towle, deputy sheriff, in regard to the levy of the execution Augustus Lord v. John Kinnear, until after said-execution had been recalled by the clerk of the court, corrected by him, returned to Hackett and again handed to Mr. Towle. He had a distinct recollection of two conversations which he had with him after that time, and had no doubt that he should as distinctly have recollected any other conversation upon that subject, if any had occurred. The execution was not in Towle’s hands but a short time, perhaps one day, before the clerk sent for it. He further testified that in accordance with the request of the clerk, the execution was immediately taken from Mr. Towle by himself or his son, William H. Hackett, and sent to the clerk to be corrected. The execution was corrected by the clerk and returned the same day, and by said Wm. H. Hackett immediately placed in the hands of Mr. Towle. A letter from I. B, Hoitt, clerk of the court of common pleas, was put in evidence, of which the following is a copy: “ Exeter, March 20th, 1852. Mr. Hackett — I have had my attention called to the writ and amendments in the case, Lord v. Kinnear, and am of the opinion that it involves some difficulties which would, if I had perceived them, prevented my returning the execution ; but I did not notice the matter as I ought, until afterwards. The execution had better be returned until I can consult at least one member of the court upon the subject. My opinion is that you cannot have judgment for more than the ad damnum in the writ; and I should not have issued the execution if I had known all the facts. I have made no judgment yet.” Subsequently to the return day of said execution of Lord v. Kinnear, Lord brought an action against Nathan H. Leavitt, then sheriff of the county of Rockingham, founded upon the following alleged cause of action, viz: that on the 21st day of March, 1852, he delivered to said George W. Towle, then and ever since, and now a deputy of the defendant, an execution in the name and favor of the plaintiff, on a. judgment recovered February „term, 1852, of the court of common pleas, against one John Kinnear, for §1959,84 debt, and costs taxed at §95,78, to be executed and returned at the next term of that court, according to law, the said Towle having served the original writ upon which said judgment and execution was founded, and having attached and returned upon said writ sufficient personal property to pay and discharge said execution : that said execution was delivered to said Towle within thirty days after the rising of the court in which said judgment was recovered, and that said Towle had not returned said execution or paid over the amount of it, or any part thereof. Said action was committed to a commissioner, appointed under the act of January 7th, 1853, whose report was made a part of this case by the order of the court below, transferring this case for the consideration of this court, by which report the following facts appear, viz : On the twenty-third day of January, 1852, Augustus Lord commenced an action against John Kinnear, and caused said Kinnear’s property to be attached upon the writ. The writ directed the sheriff to attach Kinnear’s property to the amount of §2000. There were two counts in the declaration ; the first for §1500, it being the balance of the plaintiff’s account against the said Kinnear for flour, goods, wares and merchandize by him before that date sold, &c. The second for $700, money had and received by the defendant to the plaintiff’s use. The ad damnum was $2000. About the same time, William J. Laighton commenced two actions against said Kinnear, and caused the same property attached upon the writ of Lord against Kin-near to be attached upon his writs, subject to the attachment of said Lord. All of said actions were duly entered at the court of common pleas, February term, 1852. Wm. H. Y. Hackett, Esq., was counsel for said Lord. A. R. Hatch, Esq., was counsel for said Laighton. During that term of said court Mr. Hatch informed Mr. Hackett that he was counsel for Laighton, and was instructed to examine the claims of Lord against Kinnear, and that duty he must perform by entering an appearance for subsequent attaching creditors, or by an arrangement with Mr. Hackett. Mr. Hackett told Mr. Hatch that he might have the same security of Lord’s claims as he would have if he entered an appearance, and it was so arranged; and it was arranged between the counsel that if Mr. Hatch saw anything he wished to contest, if the objection could not be removed by Mr. Hackett, the action was to be continued. Mr. Hackett found, upon examining the plaintiff’s claims, that they were several hundred dollars greater than the ad damnum in Lord’s writ against Kinnear. He afterwards saw Lord and Kinnear, and was satisfied that Lord intended, when he sued out his writ, to cover his whole claims against Kinnear, and accordingly drew amendments of the writ, which were signed by Lord and Kinnear. Mr. Hackett then taxed up the costs and figured up the plaintiff’s claims upon the back of the writ, and put all the papers into the hands of Mr. Hatch. There was a meeting of Lord, Laighton, Hackett and Hatch, at which Lord offered to assign to Laighton his debt, and let him take the management of it. Mr. Hatch asked Mi. Hackett if he supposed the amendments would be available so as to cover beyond $2000. Mr. Haekett replied, be supposed there was no doubt of it, at the same time explaining the circumstances. Mr. Hatch retained the papers about a fortnight, and between the 13th and 18th of March, 1852, carried the papers to Mr. Haekett, and said he saw no advantage to Laighton in taking an assignment of Lord’s claim, and that Mr. Haekett must take out his execution. Mr. Haekett immediately sent the papers to the clerk of the court, and received, soon after, an execution in favor of Lord against Kin-near, which was immediately put into deputy sheriff Towle’s hands for collection, which execution was for $2,764,92 debts and $95,78 costs of suit. In the actions of Laighton against Kinnear, judgments were rendered at the February term of this court, 1852, and executions taken out, bearing date the 18th day of March, 1852; one was for $1,030,42 debt, and $72,93 costs; the other was for $243,13 debt, and $12,58 costs. As soon as the executions were received by Mr. Hatch, he called upon Mr.. Towle to ascertain if he had any execution against Kinnear, and Mr. Towle showed to him the execution of Lord against .Kinnear, above named. Mr. Hatch then stated to Towle that he objected to Towle’s levying Lord’s execution upon any of the property which was attached on Laighton’s writs, and gave to Towle, Laighton’s execution against Kinnear, and directed him to levy them on property attached on Laighton’s writs, and promised him that Laighton would see him harmless for so doing. The next day after Mr. Haekett had received and put into Towle’s hands the execution of Lord against Kinnear, above named, he received from I. B. Hoitt, Esq., then the clerk of this court, a letter, a copy of which is always given in this case. Mr. Haekett immediately took from Mr. Towle’s hands the ex-cution of Lord against Kinnear above named, sent the same to Mr. Hoitt, and received from him another execution in favor of Lord against Kinnear, dated March 17th, 1852, for §1,959,84 debt, and §95,78 costs, which was immediately put into the hands of Mr. Towle, with directions to levy the same upon the property attached upon Lord’s writ against Kinnear. Towle has declined to so levy said execution, or to pay over any money, though repeatedly requested so to do, and full indemnity offered. Mr. Hatch, immediately after he put into Mr. Towle’s hands the execution of Laighton against Kinnear, wrote to clerk Hoitt for copies of the papers and judgment, Lord against Kinnear, and received from him a copy of the writ with the figures upon the back, which copy is annexed hereto, and copies of the agreements for the amendments thereof, which are numbered Nos. 1,2, and 3, and are hereto annexed. (These copies are the same already set forth in the statement of this case. The property attached upon said writs was sold by agreement of parties, by said Towle, and the amount of such sale, after deducting the expenses was §2,608,03. Part of this amount, namely the sum of §1,307,50 said Towle, on March 19,1852, levied upon, and applied the same to the discharge of the two executions of Laighton against Kin-near. Kinnear is reported to be without property now. About the same time that the property of the said Kinnearwas attached upon the writs in favor of said Lord and said' Laighton, the same property was attached upon writs issued1 in suits in favor of the following named persons, to wit: , Daniel Bailey, Thomas Curtis, Elerson O. Curtis, Franklin W. Neal, J. Woodman Moses and Thomas Tredick, upon-claims amounting in the whole to the sum of §1,960,80,. subject to the said attachments of said Lord and said' Laighton, which suits were duly entered in the court of' common pleas and are now pending therein. From the papers in the case of Lord against Kinnear, including a copy of judgment in said case; duly certified by I. B. Hoitt, Esq., as clerk of said court, it appears that at' the February term of said court, A. D. 1852, judgment was-entered up in favor of Lord against Kinnear for $1,959,84 debt, and costs of suit taxed at $95,78. The facts in relation to the same are as above stated.