
    Shelton’s Ex’ors v. Welsh’s Adm’rs.
    February, 1836,
    Richmond.
    (Absent Brockenbrough, J.)
    Office Judgment — Failure to Award Enquiry of Damages — Clerical Error — Correction.—In debt on a decree for money, a conditional judgment is entered in the office, without awarding a writ of inquiry of damages, and the judgment riot being set aside becomes final at the next term, and execution is sued out on the judgment ; but at the ensuing term, the court set aside the judgment as irregularly entered, and gave defendants leave to plead to the action: Held, it was error to enter judgment in the office without awarding an inquiry of damages ; and this was a clerical error, which the court properly corrected at a subsequent term.
    Debt — Interest—Declaration—Demurrer.—in debt on a decree for money, which does not give running interest thereon, the declaration demands interest from the date of the decree, as part of the debt: Held, declaration bad on general demurrer, for demanding interest as part of the debt.
    Appellate Practice — Defective Declaration — Effect Where Just Demand Is Shown. — when a declaration is defective and the judgment upon it is therefore reversed, and yet the declaration shews a just demand if properly asserted, plaintiff shall not be turned out of court, but the cause shall be remanded for further and correct proceedings.
    Debt, in the county court of Mecklenburg, by Welsh’s administrators against Shelton’s executors, upon a decree ot the court of pleas and quarter sessions of Caswell county, North Carolina, in favour of the plaintiffs against the defendants.
    The declaration demanded, that the defendants render to the plaintiffs the sum of 462 dollars, with six per *cen-tum per annum interest from the 1st October 1819, which to them they owed and from them unjustly detained; and then set out a decree in chancery of the court of Caswell, North Carolina, made at its October term 1819, in favour of the plaintiffs against the defendants for 462 dollars (without giving running interest till paid) prout patet per recordum; whereby action accrued to the plaintiffs to demand and have of the defendants, the said sum of 462 dollars with interest as aforesaid. Yet &c.
    The process having been executed on the defendants, and the declaration filed at the rules, a conditional judgment was entered against them for default of appearance, without awarding a writ of inquiry of damages ; which was confirmed at the next rules, and became final, by the continued default of the defendants, at the August quarterly term following; and an execution was sued out on the judgment. But, at November term, the court, upon the defendants’ motion, set aside the office judgment of the preceding August term, and quashed the execution sued out upon it; and gave the defendants leave to plead to the action.
    The defendants pleaded nul tiel record, and several special pleas. The plaintiffs demurred to the special pleas, and the court sustained the detnurrér. Then, the plaintiffs shewed the record of their suit in North Carolina; upon inspection whereof, the court gave them judgment on the plea of nul tiel record, and awarded a writ of inquiry of damages.
    The jury, upon the writ of inquiry, “found for the plaintiffs, and assessed their damages to 462 dollars, with interest thereon at the rate of six per centum per annum (being the legal rate of interest in North Carolina) from the 1st November 1819 till paid &c.” And the court gave judgment for the plaintiffs, according to the verdict.
    defendants appealed from the judgment, to the circuit court of Mecklenburg; which held, that the county court erred, in setting aside at November term the office judgment for the plaintiffs which had been made final at the preceding August term; and, therefore, reversed that order of November term, and all the subsequent proceedings in the cause, leaving the office judgment to stand in full force. And then the defendants appealed to this court.
    Johnson, for the appellants.
    Scott, for the appellees.
    
      
      Office Judgments — Enquiry of Damages —Trie principal case is cited in James River, etc., Co. v. Lee, 16 Gratt. 429, to the point that it is error to enter judgment in the office without awarding a writ of enquiry. See also, citing the principal case. Commercial union Assurance Co. v. Everhart, 88 Va. 956, 14 S. E. Rep. 836. See monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
       Record — Clerical Errors — Amendment.— On the question of the amendment of the record, the principal case, is cited in foot-note to Price v. Com., 33 Gratt. 820 ; footnote to Freeland v. Fields, 6 Call 12 ; Snead v. Coleman, 7 Gratt. 306 : Goolsby v. St. John, 25 Gratt. 158 ; McClain v. Davis, 37 W. Va. 330, 16 S. E. Rep. 629. See monographic note on “Amendments” appended to Snead v. Coleman, 7 Gratt. 300.
    
    
      
      Action of Debt. — See monographic note on "Debt, The Action of” appended to Davis v. Mead, 13 Gratt. 118.
    
    
      
      Demurrer. — See monographic note on “Demurrers” appended to Com. v. Jackson, 2 Va. Cas. 501.
    
   TUCKER, P.

The first question is, whether there was any error in the proceedings in this case, at the rules in the county court? And this seems to be clear; for the action being founded on a judgment and not on any specialty, bill or note in writing, a writ of inquiry ought to have been awarded. 1 Rev. Code, ch. 128, § 79, p. 508; Hunt v. M’Rae, 6 Munf. 454.

Next, was it competent to the county court at the November term, to set aside the office judgment confirmed (as it is said) at the previous August term. This depends upon the question, whether the errors in the proceedings at the rules were mere clerical misprisions, or are to be regarded as errors in the judgment of the court. Upon reflection, and an examination of the authorities, and particularly of the case of Eubank v. Ralls’s ex’or, 4 Leigh 308, I am satisfied, that the error is clerical and amendab'e. It had, indeed, been decided, in Halley’s adm’r v. Baird, 1 Hen. & Munf. 25, that a judgment entered in the order book, and signed by a judge in open court, could not be amended at a subsequent term; a decision in conformity with the previous case of Freeland, Lenox & Co. v. Field’s ex’or, 6 Call 12, and with the established principles of common law. Co. Litt. 260a ; 2 Vin. Abr. Amendment,- A. p. 290. *But in Halley’s adm’r v. Baird, the fact that the judgment' had been entered upon the court records, and signed by the judge, was emphatically stated, and seems to have been considered as vitally important. And in Digges’s ex’or v. Dunn’s ex’or, 1 Munf. 56, the entries at the rules seem not only to have been regarded as amendable, but this court considered the record as if it had actually been amended as it ought to have been. The declaration in that case was upon a judgment at August quarterly term, but the record only shewed a judgment at the previous July rules, whereas the office judgment-ought (as the law then stood) to have been entered as of the last day of the August term. In Eubank v. Ralls’s ex’or, this whole matter was very earnestly considered: In one of the four cases between those parties, which were before the court (the second in the reporter’s statement) the declaration claimed the penalty of the bond, without taking any notice of an indorsement thereon. The defendants did not appear, and judgment by default for want of appearance was entered against them by the clerk in the office, and confirmed at November term 1819; which office judgment confirmed, as entered at large, was for the penalty of the bond to be discharged by the payment of the principal sum with interest from the 20th December 1817, instead of the 1st March 1819, when the money was due according to the condition. On this judgment there was an execution, forthcoming bond, execution thereupon, and return satisfied; and, in August 1826, seven years after the confirmation of the office judgment, the county court, upon motion, ordered the record to be amended, corrected the judgment, and quashed the executions and forthcoming bond. This judgment was affirmed by this court, by the unanimous opinion of the judges present. If that case be deemed authority, it is conclusive of the question in this. Until assailed by others, I shall follow it, as I perceive no-reason for abandoning the opinions which I then delivered.

*With respect to the subsequent proceedings in this case, I am of opinion, that upon the plaintiffs’ demurrer to the defendants’ pleas, the court should have gone back to the declaration, which is substantially defective in demanding the sum of 462 dollars with interest, when the judgment which is recited in it does not carry interest: for where the plaintiff, in an action in nothing extrinsic, but depending upon a deed or other instrument, and pari ratione upon a judgment, demands more than by his declaration he shews himself entitled to, the declaration is bad upon demurrer. 1 Chitt. Plead. 295; 1 Wms. Saund. 285, n. 6, 7; 5 Bac. Abr. 350.

Therefore, I am of opinion, that the judgment be reversed, the verdict and proceedings up to the writ set aside, and a repleader awarded. Eor though the declaration itself is defective, yet it shews that the plaintiffs have a demand, which, when properly asserted, may entitle them to a judgment: and when this is the case', the plaintiffs ought not to be wholly turned out of court. 2 Salk. 579; 1 Chitt. Plead. 633, 4.  