Jansen v. Ball

Curia, per Woodworth, J. As to the non-production of the assignment, the rule seems to be, that the plaintiff may state the loss specially ; and omit the making of a profert; but here the deed was lost subsequently to the declaring. The plaintiff could not, at the time, declare specially. After a profert is made, the deed is supposed to remain in court; and if denied, is kept there until it be determined. (Shep. Touch. 73, 4.) The case of Smith v. Woodward, (4 East, 585,) decides, that where a plaintiff declared on bond with a profert, on non est factum pleaded, secondary evidence by means of a copy, and shewing that the defendant had taken away the original, and, before action brought, said he had burnt it, was not sufficient to sustain the declaration. The question there decided is not analagous. It is true, lord Ellenborough remarks, that if the bond were lost or destroyed after having declared on it, the plaintiff might move to put off the [631] trial; and amend. I incline to think it not necessary, for the purposes of justice, nor required by any adjudged case, that a party should incur such delay and expense, when it manifestly appears there has been no surprise; and the due execution of the instrument has not been made a question at the trial. Under these circumstances, I am of opinion that the plaintiff be permitted to amend his declaration, by adapting it to the case, which gets rid of the technical objection. Amendments which subserve the justice of the case, are frequently made after verdict. They are always addressed to the discretion of the court. It is perhaps safer to take this course, than to lay down a general rule, that where a deed is lost after issue joined, it shall be competent to give secondary evidence. (4 Cowen, 124. 3 T. R. 151. 3 Taunt. 81.) (a) The evidence entitled the plaintiffs to recover; and I think the charge of the judge was correct. The only remaining question is, whether the verdict was not against the weight of evidence, as to the amount of damages. It appeared that Van Kwren had in his possession, (and which was reputed to be his property,) amare, valued at $35, a waggon, $50, a colt, $60, a cow and heifer, $30, and a pong and harness, $30. Van Kuren testified that the waggon was left with him by his father-in-law; that he used, and afterwards sold it. He did not say who was the owner. The jury, in the absence of further proof, were justified in considering him the owner. The weight of evidence was, that the colt had not been sold, until after the assignment. The cow, heifer, pong and harness, had been sold under another execution ; and left in Van Karen’s possession by the purchaser. The cow was subsequently redeemed. The highest valuation of the property that might have been levied on, was $145. The cow, being exempt from execution, is not included. From March 3d, 1820, (allowing 6 months to collect the money,) to September 3d, 1824, supposing that to be the time when the suit was [632] commenced, the amount is $45,67, making, in the whole, $190,67. It seems to me this evidence did not authorize a verdict for a greater amount. As the damages are susceptible of calculation with considerable accuracy, I am Hot inclined to subject the parties to the expense of a new trial, if the plaintiff consent to remit a portion of the damages. My opinion is, that a new trial be granted, with costs to abide the event of the suit, unless the plaintiff shall, within 20 days, remit $92,66, parcel of the damages recovered. Rule accordingly. Footnotes [(a)] Vid. ante, 365.