Phillips v. Behn & Foster

By the Court. Benning, J. delivering the opinion. [1.] The Court below certainly had the power to pass the •order for the rectification of what is called the record. The power to establish lost papers, is a power to establish them •correctly. And so, the Court had the power to pass an order for imparting to the papers or “record,” when found, the ■virtue which it had when lost, if, indeed,' such an order was .needed. These powers the Court had under the grant of power to the Courts in respect to lost papers made by the Judiciary Act of 1799, and the grant to them of power to amend made .by the Act of 1818. (Pr. Dig. 420, 442.) And if -the Court had the power, the case was obviously one in which the power should have been exercised. There is nothing then, in the first two grounds of the Sheriff’s showing. When a verdict is expressed to be for principal and interest, the presumption must be, that the principal and interest [301] meant, are the principal and interest claimed in the declarations. What else can be meant ? And we are bound to give to a .verdict some meaning, if possible. It has been common in practice, that a verdict should be expressed to be for a named sum, “ as principal, besides interest.” And it has always been considered that the.interest intended by such a verdict, was interest to be counted on the sum named, and from the time when that sum fell due, according to the declaration. [2.] The principle which will justify such a presumption, will justify a presumption, that in a verdict of the former sort, the “principal” meant is the principal claimed in the declaration. Especially will it justify such a presumption, if the judgment is entered up for that sum as principal, and the defendant in the judgment,takes no exception to the judgment. [3.] The fund in the hands of the Sheriff, amounted to over §20.000. Of this sum the bill filed by Horne and others, •enjoined as much as §15.000 and no more. The existence of the injunction, therefore, constituted no reason why the excess over §15.000 should not.be paid out to judgments according to their comparative priorities.' The fact that there was or might be a claim on a part of the fund, of a dignity superior to that of any of the judgments, could not change the relations which the judgments bore to one another in respect to the other part of the fund. [4.] When Wm. H. Young & Co. advanced to the Sheriff the amounts of the judgments against Andrew Y. Hampton, mentioned in the statement of facts, and' took a mortgage from him to secure the repayment of the advances, they, it is to be presumed, intended to extinguish the judgments and to rely exclusively on the mortgage for their security; otherwise, they would have taken a transfer of the judgments, and would not have gone to the trouble which, in that case, would have been useless, the taking of the mortgage. But if we have to ’make this presumption, then we have to (say, that in respect to these judgments — -judgments thus to [302] be considered extinguished — there exist no rights to which they, Wm. H. Young & Co. can be subrogated. At all events, it will be time enough for the Sheriff to set up this objection, when Wm. H. Young & Co. step forward and get their claim of subrogation recognized by a Court. [5.] The fund in the hands of the Sheriff was the proceeds of the sale of property which had been sold under all the fi. fas. — the fi. fa. of Behn & Foster not less than the mortgage fi. fas. It was at the peril of the Sheriff, therefore, that he made any arrangement with the plaintiffs in the mortgage fi. fas. without consulting the plaintiff in the other fi. fa. — any arrangement by which he was to receive, in payment for the property, aught but cash. The command of that execution to him continued to be, to receive nothing but cash, an arrangement of that sort to the contrary, notwithstanding. The property from which the fund in the Sheriff’s hands was raised, had been “alienated” by the defendant in this Behn & Foster fi. fa. at some time between “ the signing of the first judgment and the signing of the judgment on the ■appealthat is, the property had, in that interval, been mortgaged to these mortgagees. It was decided, when this case was up before, (at Ameri<cus, in 1855,) that a mortgage is an alienation in the sense ■of the word alienation, as used in the Act of 1822, which makes property alienated between the signing of the judgment on the appeal and the signing of the judgment below, ■subject to the judgment on the appeal. (Pr. Dig. 451.) The question now is, whether the property thus alienated, is bound for the damages in the appeal judgment, given for a frivolous appeal. The Act of 1822 must mean, that no defendant shall, by the alienation of his property, pending an appeal, put the property in a condition in which it shall not be subject, either to the judgment on the appeal or to the judgment below. One of these two things it must mean. But it cannot mean the latter, because, by a judgment on the appeal, if not by the [303] appeal itself, the judgment below becomes extinct. The Act must, therefore, mean the former. [6.] Rut if the property, notwithstanding its alienation, is-still to be subject to the judgment which may be obtained om the appeal, it is to be subject to every part of that judgment. —to the part that is for costs on the appeal — the part that is. for interest on the appeal — the part that is for damages for a frivolous appeal, as much as to the part that stands in the-place of the judgment below, if, indeed, there is or can be-any such part at all as this latter. Is not the judgment om the appeal to be considered as out and out a new judgment?' We think the judgment of the Court below ought to be affirmed. We agree with that Court in considering none of the? grounds of the Sheriff’s showing sufficient.