Newell Sturtevant versus Alexander H. Robinson, 18 Pick. 175

Putnam J. delivered the opinion of the Court. Two questions arise in this case : 1. Whether the Court of Common Pleas erred in permitting a copy of the writ of scire facias to be filed, to supply the loss of the original ; 2. Whether the defendant shall be charged as trustee of William M. Hussey. And several objections have been made, some of them tenu ing to show that the copy which was allowed to be filed was inconsistent with itself in regard to dates, and mainly, that the court should not have permitted any copy to be filed, however correct it might be.

Now the plaintiff produces copies from the clerk, which are of later date than those produced by the defendant, reconciling the proceedings so far as relates to any inconsistency of dates. But in the correct copy there is no time mentioned for the holding of the court to which the defendant was summoned to appear. That was a good cause for abatement, if a proper plea had been filed in. But the defendant made no plea or objection in abatement, and it is too late to do so after appearance and answering.

The scire facias is a judicial writ, which is issued by the clerk, and it is within the power and duty of the court to amend it, if it should not conform to the original record of the judgment. We know by the records, that there was a judgment rendered in the original suit between the parties. There is something to amend by. And we are all satisfied, that the defendant has waived all objection in regard to matter of form, touching this process.

The more material objection is, that the paper which was permitted to be filed as a substitute, was only what the attorney of the plaintiff supposed to be a substantial copy of the original ; so that the attorney is made the judge of what was mere form and what was truly the substance of the writ. But the loss of the original writ should not operate as the loss of the judgment. It would be as correct to say, that the loss of an original deed should affect the scrantee’s title to the land.

If the paper which has been lost can be supplied by a certified copy, it would be more satisfactory than if it were supplied by one supposed to be substantially like the original. But if no such certified copy can be produced, the next best evidence, which is reasonably considered as containing the substantial contents of the lost paper, should be received. In Jones v. Fales, 5 Mass. R. 101, the attorney who made the original writ was permitted to prove the contents of the original notes declared upon; or copies of the same, by a reference to the declaration, which was made from the originals or copies.

We are all satisfied, that the Court of Common Pleas very properly allowed the motion of the plaintiff’s attorney, to supply the loss of the original writ; and that the defendant cannot be permitted to make any objections to the want of form, after having proceeded to answer it. Peter v. Benfield, 3 T. R. 476. As to the question whether the defendant shall be charged, it would seem that he has admitted, by his default in the original action of Sturtevant v. Hussey and Trustee, that he had some goods, &c." of Hussey in his hands, so that the examination now would be confined to the amount.

The defendant’s counsel have argued, that he ought to be discharged, because the money was to be paid in New York, and that the defendant cannot be compelled to pay at any other place The same objections were made in the case of Blake v. Williams and Trustees, 6 Pick. 315. They, by the course of business, were to remit to Williams the balances due to him on account; but it was held, that the money was liable to the foreign attachment here.

But the trustee would be entitled to the benefit of the exchange, if it were in favor of the United States, and would be liable for so much as would produce the amount of the money due at the place where it should be paid. And we apply the same rule to the case at bar. But the material and second objection against the plaintiff’s recovery is, that the defendant paid the debt before the attachment, to one George B. Upton, which payment has been ratified by Hussey.

The facts are, that the defendant bought ten barrels of oil of Hussey, the original defendant, on the 26th of A pril; that on the 28th, between II and 12 o’clock, A. JVI., the defendant paid the money to George B. Upton, without any order or authority from Hussey ; that at 12 meridian of the 28th, the service was made upon the defendant; and that afterwards Hussey ratified the payment, so far as his power to ratify extended. The cases cited by the defendant’s counsel, we think, do not sustain this position, for which he contends.

At the time when the writ was served on Robinson, Hussey had not assigned the debt due to him from Robinson, and the jus disponendi was taken away by the attachment. He was not at liberty, after the attachment, to prefer Upton to Sturtevant, and the payment to Upton by Robinson, without the authority of Hussey, was, so far as it regarded the plaintiff, a void act. The subsequent ratification might be valid as between the parties to it, but could not affect third persons.

It would not transfer the property until an actual ratification should take place, any more than a sale of personal property would be valid against third persons without a delivery. The business was not completed, and the creditor by his attachment put it out of the power of his debtor to carry it into effect. The judgment is to be entered up for the plaintiff, for the amount of the sum due for the oil, with interest since the time when the defendant was defaulted in the Court of Common Pleas.

The rate of exchange between Nantucket and New York, at the time when the money was payable, is to be taken into the account. And the plaintiff is to recover his costs against the defend ant.