Lewis v. Ross

Howard, J. — The defendant was adjudged trustee of Warren, and this suit is brought to determine the amount for which he was accountable upon his disclosure. By that it appears, that the defendant had contracted for “ a lot of hay, two cows, and yoke of steers” with the principal, and “ was to send for the hay, cows and steers, and pay for the same when delivered.” Before the service of the trustee process upon him, he had sent for and received a portion of the hay, for which he had made payment in part. Neither the remaining portion of the hay, nor the cows or the steers, were delivered or received under the contract. Eor the property received and not fully paid for, it is admitted, that the defendant was held as trustee. It is contended, that the contract was entire, and that, as the defendant had taken a part of the goods, he had the right to the possessipn, and the power to take immediate possession of the whole; and that he must be regarded as having the whole property intrusted to him, within the meaning of the statute, and charged accordingly. R. S., c. 119, § 4. But'it appears, that the property not delivered under the contract, remained in possession of the principal, and did not pass to the defendant. It was open to attach [233] ment as the property of the' former, and could not be subject to attachment as the property of the latter. The sale had not been perfected under the contract. Though the steers were temporarily in the keeping of the defendant, they were taken and used, by persons employed by him to haul the hay, but without his authority, and he refused to receive them, or pay for them. They were not, then, in his possession under the contract, and were not goods or effects of the principal entrusted or deposited in his hands, within the intent of the statute. His claiming to hold them, after the trustee process was served upon him, cannot change the facts, or right to the property, at the time of the service. This is unlike the case of Lane v. Nowell & trustee, (15 Maine, 86,) cited for the plaintiff. There the goods appeared to have been delivered to the trustee, "and he had engaged to account for them, and actually controlled them under the conveyance, and written contract. The defendant was chargeable only for the unpaid balance due for the hay received, as trustee. That amount, after deducting his costs on disclosure, he paid to the officer holding the execution, on demand. We do not understand that the. amount of such balance costs are in controversy. But it is contended, that no deduction should have been made for the trustee’s costs, and that the whole balance should have been paid to the officer. The defendant having duly submitted to an examination on oath at the first term and disclosed, and having been adjudged trustee, was entitled to his costs, and authorized “ to deduct from the amount in his hands, the amount of such costs.” R. S., c. 119, § § 16, 17. He claimed to retain his costs as taxed in Court, and the taxation and claim form a part of his disclosure. But no specific or separate judgment for such costs appears of record, or was noted upon the docket. The judgment, charging him as trustee upon his disclosure, established his right to his costs, which are secured to him by statute. It was a substantial finding for him, though not properly docketed and recorded. The [234] judgment appears to have been imperfectly recited in its details, and'the record is incomplete. But it would not comport with the justice of the case, that a party clearly entitled to his.costs, should be deprived otf them by a mere informality in the record, or misprision of the clerk. Errors of this kind are not errors in the judgment of the Court, in point of fact, and are amendable at any time. “ The forms of the Court are always best used, when they are made subservient to the justice of the case,” said Lord Kenyon, in Mara v. Quin, 6 T. R. 8. In Cradock v. Rafford, 4 Mod. 371, the Court ordered the roll to be brought in and amended, after the judgment had been signed twenty years. Hanckford v. Mead, 12 Mod. 384; Short v. Coffin, 5 Burr. 2730. In Mechanics' Bank v. Minthorne, 19 Johns. 244, the Court, on motion, ordered the entry of satisfaction of the judgment, and all proceedings in the case, subsequent to the interlocutory judgment at a previous term, including the assessment of damages, to be vacated, and-the record of the judgment to be canceled, and the damages to be reassessed. Chichester v. Caude, 3 Cowen, 39; Hart v. Reynolds, 3 Cowen, 42, n. a., where the Court adopted the result of the learned research of counsel, in allowing the amendment of the record of the judgment, and proceedings connected therewith, filed sis years previously. This Court has sanctioned the same doctrines, and amended its records in furtherance of justice, and according to the truth of the case. Crofton v. Ilsley, 6 Maine, 48; Wright v. Wright, 6 Maine, 415; Limerick, Petitioners, 18 Maine, 183; Hall v. Williams, 10 Maine, 278. Although no motion has been presented to us to allow the amendment in this case, yet the error is apparent, and the subject is before us upon the facts and documents connected with the imperfect record, and addresses itself to bur discretion. Shall the, record stand as it is, stamped with an* infirmity, to perpetuate a wrong ? Or shall we cause an amendment to supply the deficiencies that have [235] occurred by accident or mistake, and when it is evident that no one can suffer by the correction? On general principles, it is competent for a court of record, and incident to its authority, to correct mistakes in its records, which do not arise from the judicial action of the Court, but from the mistakes of its recording officer. In doing this, it may regulate its own action upon, its own sense of responsibility and duty, and proceed upon suggestion, or on motion of those interested, or upon its own " certain knowledge and mere motion.” It would not be an adversary proceeding, in which, of necessity, there should be parties, or in which notice would be required. Balch v. Shaw, 7 Cushing, 282. It would seem that no lapse of time will divest the Court of its power, or absolve It from its duty, to supply deficiencies in the records of its own proceedings, where justice and the truth of a case require it, and when it is enjoined by statute. R. S., c. 100, § ■§ 14, 15. In civil actions, the prevailing party is entitled to eosts, and they follow the judgment, as of course, either on verdict, nonsuit or default, and practically are taxed, allowed and incorporated into the judgment by the clerk, without any special order, unless upon objection or special hearing. In Norris v. Hall, 18 Maine, 332, it did not appear that the trustee appeared at the first term, and submitted to an examination; or that any costs were taxed, claimed or allowed for him, or that he was entitled to any, by judgment of Court. We are of opinion that the record of the judgment of this Court, in the original suit, should be corrected and completed, so that it will show expressly, that the legal costs taxed and claimed by the trustee, in his examination and disclosure under oath at the first term, were allowed. Then judgment should be entered for defendant, according to the agreement. Shepley, C. J., and Rice, Hathaway and Cutting, J. J., •concurred.