
    Daniel Boon, Use of Reuben Branch, vs. Joseph G. Boon.
    The notes made by the judge on the docket are not part of the record, nor evidence for any purpose; nor can a judgment be amended by them.
    In no case can an amendment be made at a subsequent term, unless there be something in the record to amend by; it cannot be made known from memoranda or memory of the judge.
    Where an action of debt was brought upon a judgment rendered in another state, and the plea of nul tiel record was filed, and the case was submitted to the court, but no record made of the decision ; it was held to be erroneous, at a subsequent term of the court to enter a judgment, nunc pro tunc, that the plea was sustained ; the judge having merely made a memorandum to that effect on the plaintiff’s declaration, but no record having been made of it.
    In error, from the De Soto circuit court; Hon. James M. Howry, judge.
    The record in this cause shows that the plaintiff in error brought an action of debt against the defendant in error, to the September term, A. D. 1843, of the circuit court for De Soto county, on the record of a judgment, for the sum of $191 damages and costs, recovered in the state of Tennessee, before a justice of the peace. The plea of nul tiel record was filed by the defendant. At the March term, 1845, the defendant moved the court to have the judgment of the court, at the September term, 1844, sustaining the plea of tml tiel record, entered upon the minutes nunc pro tunc, which motion the court sustained.
    The plaintiff took a bill of exceptions, by which it appears that at the March term, 1845, the cause came on to be heard upon the declaration and plea of mil tiel record, and the plaintiff offered in support of his declaration a transcript of a record, which is set out in the bill of exceptions, and which exhibits a judgment for $191. The defendant objected to the said record being considered by the court, on the ground that at “ the last term of the court the plaintiff had submitted his case upon another transcript of record, which is set out in the bill of exceptions, showing judgment for $ 191, and that thereupon the court had decided for the defendant on his plea of nul tiel record, and had indorsed on the declaration its judgment, that the said plea be sustained, and that the clerk had failed to enter the judgment on the minutes; and thereupon the defendant moved the court for judgment nunc pro tunc, which motion was sustained ;” and the plaintiff below sued out this writ of error.
    
      William G. Thompson, for plaintiff in error.
    It is contended, for the plaintiff, that the court had not power to enter judgment in this case nunc pro tunc, according to the defendant’s motion. There are cases in which courts may enter their judgments nunc pro tunc; as, where an issue is submitted to a jury, and a verdict is given and is entered of record, the court may, at a subsequent term, enter the judgment of the law consequent upon that verdict. But if the verdict was not entered of record at the term at which it was given, the court could not, at a subsequent term, enter judgment upon its own loose recollection, or the recollection of any witness, that such a verdict had been given at a previous term. A venire de novo would have to be awarded in such case. The issue on a plea of nul tiel record is submitted to the decision of the court, though an issue of fact; the decision of the court upon such issue, is precisely similar to the decision of a jury upon an issue of fact. In the one case the jury give their decision upon the issue of fact, and upon that decision the judgment of the law is entered; in the other the judge gives his decision upon the issue of fact, and upon that decision the judgment of the law is entered.
    There is no reason why a judgment at a subsequent term may be entered upon what is alleged to have transpired at a previous term, upon evidence that would not authorize amending a judgment at a subsequent term. Under our statute of amendments, and the construction which has been put upon it by this court, the facts set forth in the bill of exceptions in the case at bar would not authorize amending a judgment at a subsequent term.
    
      William Thompson, on the same side.
    
      Van Winkle and Potter, for defendant in error.
    The motion was to enter a judgment, nunc pro tunc, which judgment should have been entered by the clerk at the preceding term, but had not been entered. The entry was to be made in accordance with a memorandum of the judge, indorsed upon the papers at the term where judgment should have been entered. The motion was properly sustained; the court only directed the clerk to do what he should have done at the preceding term. This order would have been made under the common law rule, independent of the statutes of .amendments. Comyns’s Dig. tits. Amendment, Judgment; 1 Cov. & Hughes’s Index, 59. See also, 3 Cowen, 43, note ; Lansing v. Lansing, 18 John. 502 ; Mech. Bank v. Minihorne, 19 lb. 244; Waldo v. Spencer, 4 Conn. 71; Ringgold v. Brown, 4 Harr. & McHen. 498; Digges v. Dunn, 1 Munf. 56.
    This motion did not involve the question as to the power of the court to amend a judgment after term passed; for, until the judgment was entered pursuant to the motion, the cause was at issue in the court. Ttíe allowance of the motion, was the exercise of a discretion, which cannot be questioned on writ of error. The plaintiff must show, here, that the issue on the plea of nul tiel record should have been found for him, or there is no error of which he can complain.
    We say that if this, case was sent back to be tried on the proof on which plaintiff insists that it should have been tried, the court below must render judgment for the defendant.
    The declaration describes a judgment in assumpsit, for $191, amount of damages and costs. The records, offered to sustain these averments in the declaration, both show judgments in debt, for $191, exclusive of costs. There is a fatal variance in these two particulars, between the judgment declared on and the judgment shown by the record. Edwards v. Lucas, 5 Barn. & Cress. 339, in 11 Eng. Com. Law Rep. 250; 7 How. 124; Baynes v. Forrest, 2 Stra. 892; 1 Chit. PI. 404, and note f; 2 lb. 482, notes; 1 Greenl. Ev. sec. 70.
    The bill of exceptions shows that the so called record of a judgment in Tennessee, was offered as the sole proof to sustain the declaration. It seems to have been considered as effectual as if it had been the transcript of a court of record, duly certified, pursuant to the act of congress. But it is well settled that this record could not be evidence as certified; if the justice has no clerk, the transcripts of his proceedings must be proved as required by common law rules. They cannot be certified under the act. 3Phill. Ev. (Cowen & Hill,) 1127, et seq.; lb. 898, seq.
    ■ Nothing is presumed in favor of the jurisdiction of courts of limited, special jurisdiction. The plaintiff was bound to show, affirmatively, that the justice had jurisdiction. 3 Phill. Ev. (Cow. & Hill,) 906.
    The bill of exceptions proves that plaintiff relied solely on the transcript as proof of itself sufficient to support the declaration. That transcript was no evidence, because not proven to be a true copy. It did not support the issue, for it showed a judgment in debt, whereas the declaration showed a judgment in assumpsit. It showed a judgment for $191, exclusive of costs, whereas the declaration described a judgment for $191, including in that amount both damages and costs.
    
    So that, even if it be held that the circuit court should have tried the issue upon the amended transcript, the judgment would have still been for the defendant. Why then reverse the judgment 7
   Mr. Justice ThacheR

delivered the opinion of the court.

The plaintiff in error instituted an action of debt against the defendant in error, at the September term, 1843, of the circuit court of the county of De Soto, upon a record of a judgment obtained in the state of Tennessee. The defendant plejfd-ed mil tiel record. At the March term, 1845, the defendant entered a motion to have the judgment of the court, at its September term, 1844, sustaining his plea of nul tiel record, entered upon the minutes nunc pro tunc. Upon a judgment sustaining this motion, the plaintiff took a bill of exceptions, which discloses that upon the case being called for hearing upon the declaration and plea at the March term, 1845, the plaintiff offered in evidence a transcript of a record, to which the defendant objected upon the ground that at the previous term of the court the plaintiff had submitted the case upon another transcript of a record, and that thereupon the court had decided the plea of nul tiel record for the defendant, and had indorsed upon the plaintiff’s declaration its judgment, that said plea be sustained, and that the clerk had by accident, or omission, failed to enter judgment, in pursuance of said decision, and that thereupon the motion aforesaid for judgment nunc pro tunc was made and sustained.”

It was improper in the court below to have ordered the entry of a judgment nunc pro tunc, upon the state of facts presented in this record. The motion amounted to a request to the court to enter up a judgment when there was nothing in the record to rest that judgment upon. It was like a request to enter a judgment at a subsequent term, based upon a verdict rendered at a previous term, which verdict does not appear in the record and is required to be presumed. It was held by this court in Dickson v. Hoff’s Administrator, 3 How. 165, that the notes made by the judge on the docket are not part of the record, nor evidence for any purpose, and a judgment cannot be amended by them. The doctrine that in no case can an amendment be made at a subsequent term, unless there be something in the proceedings to amend by, was still further considered-and maintained by this court in Russell and Wife v. McDougall, 3 S. & M. 234. It was also held in Ridgway et al. v. Ward, 4 Humph. 430, that clerical errors cannot be corrected at a subsequent term, from the memory of the judge, or from written evidence filed in the cause, and only by proceedings of reCtord. It is apparent that the basis upon which the judgment in the case at bar was entered up, was not a matter of record, but a mere matter of memorandum by the judge.

Tt is to be added, that with the foregoing view of the judgment below, the suggestion that this court may enter up such a judgment as the court below should have given, cannot be entertained.

Judgment reversed, and cause remanded.  