Mifflin v. Berry & Howell , 1 Del. Cas. 522 ( 1814 )

In all arbitration cases the objections of the parties to the report of the referees must be made at and during the term to which it is made returnable, which has not been done in this case. The report was returned to May Term, 1814.

We have laid before the Court transcripts of several judgments obtained by default and confession by the children of the intestate against these defendants. If there be in fact a deficiency of assets, the defendant must have wasted the estate. It appears from the administration accounts laid before the Court that the defendants have retained considerable sums of money for real or pretended debts due to themselves, and should the Court be against us on the motion, they will order that these sums shall be considered unadministered and go to the payment of our debt.

It is said on the other side that the legal effect and operation of a general judgment is a litigated point and intimated that it was thought by them that the effect of this judgment would be the same with that of a judgment of assets. This is not now the question, but it may be observed that the defendant’s attorneys were too well acquainted with the law to doubt, or, if they did, would not have tried an experiment in so important a cause. 5 Cranch is not in point, because here plene administmvit was never in issue. The ground upon which the court went in 5 Burr. 2735 was that the judgment de bonis propriis was a mere misprision of the clerk and liable to be reversed for error. Amendments are always in support of judgments, and upon an allegation of some mistake of the clerk which has occasioned the error upon the record, or upon the production of some precedent proceeding by which the amendment may be made. Nothing can be called an amendment that does not rectify some error appearing upon the face of the record. The true object of this motion is not an amendment but the substitution of one regular judgment for another. The ground upon which this rule to show cause was granted was that the intention of the parties was merely to bind the house and lot at Camden by the judgment. In their attempts to prove this supposai, the defendants have completely failed.

Hally in reply. The Court will do the plaintiff no injury in making the amendment we ask. While if our motion be not granted, we, and particularly Howell, the co-administrator, who never consented to the rule of reference, or even knew of it until after judgment was entered, will suffer the greatest injury, as we shall have to pay the debt out of our own pockets.

We should certainly have contended the point of assets had there not been a perfect understanding among us that the house and lot only could be bound. The special provision in the rule of reference was mere surplusage and gave us no advantage — nil operatur.

I do contend that in amicable actions all is in issue and 5 Cranch 19 is in point. I admit that where the referees make no mention of a special matter they ipso facto negative it. Now 5 Cranch determines that a mere negative of a plea of plene administravit by a jury is insufficient to support a judgment against an administrator. They must find the precise amount of assets. The conclusion flows irresistibly that the judgment here is not supported by the report of the referees.

Our objections are not so much to the award as to the judgment entered on it. We cannot be too late then, and the argument of loches can apply only to the award, which we do not move to alter. Amendments are frequently made when there is neither any misprision of the clerk, nor anything to amend by, nor any error on the face of the report.

The judgments for the children were bona fide. We could not resist their claims. Wé have retained for our own debts, as we were in conscience entitled to do.

And if the Court should be against us on every other ground, they must certainly amend a judgment entered up against good faith.

Note. The Court in the following vacation ordered the amendment to be made without giving any reasons.