
    W. & A. Moore vs. Tracy.
    An action on the. case lies against a party who conspires with another, that such other shall obtain goods on credit from a third person, and deliver the same over to him; the fraudulent act of the party obtaining the goods being deemed the act of the other.
    The party obtaining the goods is a competent witness against the particeps' fraudis. ,
    
    A judgment will not be reversed for clerical errors, or mere matters of form _• thus, where a placitá of a record on the common pleas was of a wrong term, manifestly by mistake, and where in a judgment on appeal by defendants, costs of the court below were awarded to the plaintiff, the court judicially knowing that there could be no such costs, refused for these causes to reverse the judgment.
    Where the defect in a record relates to form, the court will either disregard it or suspend giving judgment until application can be regularly made for an amendment.
    Error from the Otsego common pleas. Tracy sued W. & A. Moore before a justice of the peace, and declared against them in an action on the case, charging them with having entered into a conspiracy with one John Van Valkenburgh, a person destitute of property, to the following effect: That Van Valkenburgh should buy and obtain of the plaintiff, or of any other person of whom he might obtain the same, various articles of goods and chattels, under the pretence of a fair and bona fide purchase, but not intending to pay for the same; and that the goods so obtained should be delivered into the possession of the defendants; that /Van Valkenburgh should then declare himself insolvent, and by the aid and assistance of the defendants, petition for and obtain a discharge under the insolvent act, and thereby defeat the collection of the demand of the plaintiff, or of any other person from whom goods might be obtained; that in pursuance of such conspiracy, so fraudulently and deceitfully entered into, Van Valkanburgh after-wards to wit, on, &c. at, Sic. under the pretence of a fair and bona fide purchase, obtained from the plaintiff certain articles of property, to wit, one bridle, one saddle, Sic. Sic. which were delivered to the defendants, or one of them, and by them disposed of to their own use, or fraudulently kept for Van Valkenburgh, to be delivered to him after he should obtain his discharge as aforesaid, to the damage of the plaintiff of $50. The defendants pleaded the general issue; the cause was tried by a jury, who found a verdict for the plaintiff for $27 damages. The defendants appealed to the common pleas, and on the trial in that court Van Valkenburgh was produced as a witness on the part of the plaintiff; the defendants objected to his competency, but the objection was overruled. He proved the material averments in the declaration, the corrupt agreement between him and the defendants, the' purchase by him of the goods of the plaintiff to the amount of $28, and that the principle part of such goods, after undergoing a fraudulent transfer, came to the possession of one of the defendants. He also proved his application for a discharge as an insolvent debtor, and that one of the defendants aided him in the same. He also proved the fraudulent obtaining of property in like manner from sundry other persons besides the plaintiff, and his testimony was corroborated by the evidence of several witnesses. The court charged the jury that.Van Valkenburgh was a competent witness, but being a particeps.fraudis, his testimony was to be received with great distrust,and caution; and his credibility was greatly affected, unless sustained by other evidence, and whether he was so sustained it was for them to determine; that if they came to the conclusion.to believe his testimony, the next question for them to determine was the amount of damages; that in "assessing the damages, they were not restricted to the value of the property obtained of the plaintiff, but had a right to give exemplary damages and smart money; that if they believed Van Valkenburgh, it was a case of great aggravation, which required the defendants to be punished, and it was for, them to say what damages the defendants should pay, as an example to all others in the like case offending, and as an atonement for the injury to the plaintiff, and to an insulted and abused community. The jury found a verdict for the plaintiff, with $80 damages and six cents costs. The defendants excepted to the decision of the court, admitting Van Valkenburgh as a witness, and to the charge delivered to the jury, and sued out their writ of error.
    
      On the argument of the writ of error, the defendants below insisted that the court of common pleas erred in the particulars presented by the bill of exceptions, and also that on the face of the record there was error. The placita in the common pleas is on the second Tuesday of February, of the February term, 1829. Then follows a memorandum, that on the second Tuesday of October, in this same term of October, came the defendants W. & A. Moore, and bring into court their appeal, and suggest that the justice to whom notice had been given of the appeal, had filed a return of the proceedings before him, which is set forth, shewing a judgment against the defendants, in favor of the plaintiff, for $27 damages, rendered 5th October, 1829. Next follows an award of venire, to the first Tuesday of February, 1830; the coming of the jury on that day, trial and verdict for the plaintiff, for $80 damages and Tf7 costs, and then judgment is entered, that the plaintiff recover the damages by the jury assessed, and also $50,77, “ for his costs and charges by him laid out and expended in and about his suit in this court, upon the said appeal, and in the court below, by the said court of common pleas, before the said judges thereof, now here adjudged of increase” to the plaintiff. The plaintiff below produced a certificate of the clerk of the common pleas, verified by affidavit that he made up the record, at the request of the plaintiff, that by mistake, he inserted the word February, instead of October in the placita; and that the words in the judgment and in the court below were also inserted by mistake, and that no costs accrued in the justice’s court were included in the sum of $50,77, taxed as costs in the common pleas. This certificate was read by consent, subject to all legal exceptions, and the defendants below insisted that it could not be regarded by this court in the decision of the writ of error.
    
      J. Seelye, for plaintiffs in error.
    There is error on the face of the record. The placita of the record in the common pleas is of the second Tuesday of February, in the February term, 1829; the term is fixed by law to be holden on the first, and not the second Tuesday of February—besides, February, 1829, was eight months previous to October, 1829, when the judgment before the justice, which was carried up by appeal to the common pleas, was rendered. Again ; by the record it appears that the plaintiff recovered costs accrued in the court lelow ; this is palpably wrong, as on appealing, the defendants must have paid all the costs then accrued, or their appeal would have been a nullity. These errors are not cured by the certificate of the clerk ; it forms no part of the record, and should have no influence in the decision of this case; nor can the provision in the revised statutes, rol. 2, p. 601, § 60, which will be relied on by the other side, save this judgment from reversal; that provision can have no greater or other operation than the former provision on this subject had. 1 R. L. 121, § 9. This action is without precedent. The principle of the case of Pasley v. Freeman, 3 T. R. 51, the leading case on the extension of actions of this kind, has been greatly questioned, and although acted on by this court in Ward v. Center, 3 Johns. R. 271, it was urged by a learned judge that it should not be extended. The credit in this case was given to Van Valkenburgh alone, and nothing was said or done by the defendants to induce the plaintiff to part with his property. Upon what principle of law, then, can the defendants be held responsible to the plaintiff? Van Valkenburgh was improperly admitted as a witness ; the effect of his testimony was to discharge himself from liability to the plaintiff for if a recovery was had against the defendants, followed up by satisfaction, the plaintiff could not recover against him. 16 Johns. R. 89. Even the principle of admitting a particepsfraudis does not apply, as the parties were not In pari delicto. The charge to the jury is exceptionable ; its effect was unduly to excite them in the assessment of damages; considerations were presented to their minds, foreign to the question upon which they were bound to pass.
    
      A. Stewart, for the defendant in error.
    It is manifest from the whole record, that the errors in the record are mere matters offorni, which the court may disregard. 2 R. S. 425, § 8, and 601, § 60. The judgment before the justice not being rendered until October, it was impossible that the appeal could have been in the C. P. in the preceding February; so also as to the costs in the court below, the court will not intend that when there were none to be taxed, they were included in the faxation. Van Valkenburgh was a competent witness; a co-trespasser is competent. 7 Cowen, 348. 8 id. 62. 10 Johns. R. 21. 1 Wash. R. 187. 18 Johns R. 352. So also is a particeps fraudis. Phil. Ev. 31. Peake’s Ev. 143, 157. 6 Johns. R. 135. Under the circumstances of the case, the charge to the jury was justifiable. It is no error that the jury gave a greater sum than was demanded in the court below. 19 Johns. R. 276.
   By the Court,

Sutherland, J.

I am inclined to to think the errors appearing on the face of the record may be disregarded by the court as clerical or matters of form, not affecting the right or justice of the case. The mistake in the plácito. is obviously of that description ; it is the term of February, 1829, and states the court to have been held on the second Tuesday of that month, whereas it appears from the justice’s return, which constitutes a part of the record, that the original process was not issued by him until the 2d October, 1829, and the memorandum shows that the cause was not brought into the common pleaa until the October term, 1829. The term in the placita, therefore, was obviously a clerical error; it should have been October instead of February; so also was the day on which the court is stated to have been held the the second instead of the first Tuesday of February. The terms are fixed by law, and the court will take judicial notice of them; they will intend a mistake in making up the record, rather than suppose that the court sat on a day on which they could not legally sit.

The error in awarding to the appellee the costs in the justice's court, as well as in the court of common pleas, is not so obviously a clerical mistake, although without any explanation there could be but little doubt that it was so; for the appeal could not have been brought into the court of common pleas, unless the costs of the appellee before the justice had first been paid, and the presumption would be very strong that the common pleas could not have given the appellee judgment for those very costs, which they judicially knew from the return of the justice had already been paid to him. The certificate of the clerk who made up the record accounts satisfactorily for the mistake, and shows that the costs before the justice were neVer taxed or included in the judgment. This certificate, it is true, is by the stipulation of the parties subject to the same objections to which it would have been liable, if it, had been offered to be read upon the argument of the case ; and strictly, I think it could not have been received.

It is provided by the statute, 2 R. S. 425, that no judgment shall be reversed on account of certain formal defects partieu-. larly enumerated, and among others, “ for any informality in entering a judgment or making up the record thereof; ” and by a subsequent section it is enacted “ that the omissions, imperfections, defects and variances, previously enumerated, and all others of the like nature, not being against the right and justice of the matter of the suit, and not altering the issue between the parties or the trial, shall be supplied and amended by the court where the judgment shall be given, or by the court into which such judgment shall be removed by writ of error. Where it is obviously and clearly a mere clerical error or omission, the court will disregard it without making a formal amendment. Where it is not a mistake of that description, probably a motion should be regularly made for the purpose, upon due notice, like any other non-enumerated motion. Regularly, therefore, the certificate of the clerk cannot be regarded ; but we certainly ought not, under such circumstances, to reverse the judgment; we should, at all events, suspend the decision of the case until an application for the amendment could be made, and it seems hardly necessary to delay the decision of this cause for that purpose, when the explanation is before the court, though not in a strictly technical and formal manner.

Upon the merits also I am inclined to think the judgment ought to be affirmed. It is an action on the case to recover compensation for an injury inflicted upon the plaintiff! through a combination or conspiracy between the defendants and one Van Valkenburgh, to the following effect: Van Valkenburgh being destitute of property, it was agreed between him and the defendants that he should purchase upon credit from the plaintiff" and others, various articles of goods and chattels, and deliver them over to the defendants ; that he then should become insolvent, and with the aid of the defendants obtain the benefit of the insolvent act, and cheat the plaintiff and others out of their debts. The conspiracy was actually carried into effect, and the property of the plaintiff thus fraudulently purchased by Van Valkenburgh, was immediately, according to the agreement, delivered over to the defendants, or one of them, and has been by them disposed of to their own use. In Pasley v. Freeman, 3 T. R. 56, the broad and salutary principle was established that fraud, accompanied with damages, gave a good cause of action to the injured party, and that it was not necessary, in order to sustain the action, that the defendant should be benefitted by the deceit, or that he should collude with the person who was benefitted. 3 Bulst. 95. Cro. Jac. 386. Comyn’s Dig. Action upon the Case, Deceit, A. 1. Vide Ward v. Center, 3 Johns. R. 271, where Pasley v. Freeman is adopted as good law; and see also 6 Johns. R. 181, and 8 id. 23. Pasley v. Freeman, and the other cases, it is true, were cases of a false affirmation, made by the defendants to the plaintiff with intent to defraud, whereby the plaintiff was induced to sell his goods to an irresponsible person, and although the defendant derived no benefit from the fraud himself, the action was sustained. In the case at bar the defendants reaped all the fruits of the fraud, but had no personal communication with the plaintiff. The declaration does not charge them with doing any act to induce the plaintiff to sell his goods to Van Valkenburgh, but Van Valkenburgh must be considered their agent, and his false and fraudulent representations (that he intended and would pay for the goods, when it had previously been determined between him and the defendants, that he should immediately put them into the hands of the defendants, and take the benefit of the insolvent act) must be considered the acts and declarations of the defendants themselves.

Van Valkenburgh was a competent witness. The recovery in this suit would be no protection to him in an action brought either for the value of the goods or for the fraud. Perhaps a recovery and satisfaction in this suit might be a defence to a subsequent suit brought against him, but the satisfaction is contingent, and prevents his interest from being fixed and certain; it is analogous to the case of joint trespassers separately sued, where each may be a witness in the action against the other ; so an accomplice or a particeps fraudis is a competent witness, either to prove or disprove the fraud. In all these cases the testimony of such a witness should be listened to with great suspicion, but it is competent evidence, partly from the necessity of the case, and partly because he has no certain interest in the event of the suit. 1 Phil. Ev. 31, 2, 3, 4, 5. lWash. Virg. R. 187. 6 Johns. R. 135. 11 Mass. R. 498. 3 id. 559. 1 Day, 22. 3 Johns. Cas. 82. ' 10 Johns. R. 22. 1 id. 290. 16 id. 89. 7 Cowen, 346. 8 id. 60. The jury in this case were cautioned by the court to receive the testimony of the witness with great distrust, except so far as he was corroborated by other testimony; to a considerable extent he was so corroborated, and I think the evidence warranted the verdict.

The charge of the judge on the subject of damages was strong, and perhaps stronger than strictly it ought .to haVe been, in some of the general expressions in which he indulged ; but the error, if any, was not of such a character, and has not produced effects which make it incumbent upon us to reverse the judgment on that ground.

Judgment affirmed.  