
    JANUARY TERM, 1844.
    Robert B. Russell and Wife, et al. v. Nicholas McDougall, Judge of Probate, &c., use of Samuel Luckett, Adminidtrator, &c.
    Sureties on an administrator’s bond who have petitioned the Probate Court for relief, after counter security has been given and a new bond executed, are absolutely discharged from all liability; and they may plead the execution of the new bond in bar of any action which may be subsequently brought on the original bond.
    In an action of debt on a bond with conditions annexed, when the declaration alleges special breaches, it is error to render judgment final, either by default or on demurrer. A writ of inquiry should be awarded, and a jury empan-nelled to assess the damages according to the evidence.
    Courts may amend the mistakes or errors of their clerks, made at a previous term, provided there is anything in the record or proceedings to amend by ; but they cannot at a subsequent term amend their own judgments, unless it be in the manner provided for by the statute.
    In no ease can an amendment be made at a subsequent term, unless there be something in the proceedings to amend by.
    Memoranda made by the Judge on the back of the declaration, at the time of the trial, constitute no part of the proceedings in the cause.
    This was an action of debt, brought by Nicholas McDougall, Judge of Probate of the county of Claiborne, for the use of Samuel Luckett, administrator with the will annexed, of the estate of James Luckett, against Robert B. Russell and his wife, Amelia A. Russell, Joseph F. Brock, William Henderson, and George Henderson, to the November term, 1840, of the Circuit Court of Claiborne county, founded on a bond for one hundred thousand dollars, executed on the 1st day of March, 1838, by Amelia A. Luckett, who afterwards intermarried with Robert B. Russell, as the administratrix ad colligendum of the estate of her first husband, James Luckett, and the said Brock, and William and George Henderson as her sureties. The declaration alleged several special breaches of the conditions annexed to the bond. The writ was executed on Robert B. and Amelia A. Russell, Joseph F. Brock, and George Henderson, and returned “ not found ” as to William Henderson. At the return term the defendants appeared by attorney, and craved oyer of the writing obligatory sued on. And at the May term, 1841, the defendants, Brock and George Henderson, appeared and filed the following plea, to wit : “ And the said defendants, Joseph F. Brock and George Henderson, by their attorneys, come and defend the force and injury, when, &c., and crave oyer of the writing obligatory aforesaid, in the declaration aforesaid mentioned, and they are granted as follows, to wit: £ Know all men by these presents, that we, Amelia A. Luckett, Joseph F. Brock, William Henderson, and George Henderson, of the county of Claiborne, are held and firmly bound unto Nicholas McDou-gall, Judge of Probate, of said county, in the sum of ‡100,000, lawful money, to be paid to the said Nicholas McDougall, or his successors in office, to which payment well and truly to be made, we, and each of us, bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents, sealed with our seals, and dated this 1st day of March, A. D. 1838. The condition of the above obligation is such, that if the above bound Amelia A. Luckett, shall well and truly discharge the office of collector of the goods, chattels, and personal estate, and debts of James Luckett, deceased, and shall make, or cause to be made, a true and perfect inventory, or inventories of such of the said goods, chattels, personal estate, and debts as shall come to her possession or knowledge, and the same in due time return to the office of the clerk of the Probate Court of said county, and shall also deliver to the person or persons who shall be authorized by the Probate Court of said county to receive them, such of the goods chattels, personal estate, and debts as shall come to her possession, except such as shall be allowed by the said Court, then the above obligation to be void, otherwise to remain in full force and virtue. Amelia Luckett, (seal.) Joseph F. Brock, (seal.) William Henderson, (seal.) George Henderson, (seal).’ Which being read and heard, the said defendants, Brock and Henderson, say actio non, because they say that they, the said securities of the said Amelia A. Luckett (now Amelia A. Russell), as administratrix ad colligendum on the estate of James Luckett, deceased, conceiving themselves in danger of suffering by, and on account of their said securityship, petitioned the said probate of said county for relief. Whereupon ^the said Amelia A. Russell, (late Amelia A. Luckett), administratrix as aforesaid, together with one Robert B. Russell, with whom she had intermarried, voluntarily came into said Court, at the March term thereof, A. D. 183S, and thereupon the said Court did make an order in the premises in the words and figures following, to wit: ‘ Ordered, that letters of administration ad colligendum on the estate of James Luckett, deceased, be granted and issued to Robert B. Russell, and Amelia Ann Russell, they having taken the usual oath, and entered into bond in the penal sum of ‡ 100,000, with Ignatius Flowers, Joseph F. Brock, and Richard J. Bland, their securities in compliance with which said order, so as aforesaid made, the said Robert B. Russell and Amelia A., his wife (late Amelia A. Luckett), executed a new bond with security, payable and conditioned as aforesaid, to wit; at the county of Claiborne aforesaid, which said bond was approved of by the said Court, and filfed among the records thereof, and recorded, and is and reads in the words and figures, following, to wit; ‘ Know all men by these presents, that we, Robert B. Russell and Amelia A. Russell, Ignatius Flowers, Joseph F. Brock, and Richard J. Bland, of Claiborne county, State of Mississippi, are held and firmly bound unto Nicholas McDougall, Esq., Judge of Probate in and for said county of Claiborne, and his successors in office, in the sum of $100,000, for which payment well and truly to be made, we, and each of us bind ourselves, and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents, sealed with our seals, and signed with our hands this 26th day of March, 1S3S. The condition of the above obligation is, that whereas the above bound Amelia A. Russell, administratrix ad colligendum of the goods, chattels, and credits of James Luckett, deceased, heretofore executed a bond, payable to N. McDougall, Esq., Judge of Probate, and conditioned for the discharge of her duties as administratrix ad colligendum aforesaid, which said bond bears date 1st of March, 1838; and whereas the said Amelia A. Russell (late Amelia A. Luckett), has since intermarried with the said Robert B. Russell; now therefore, if the said administratrix and administrator ad colligendum as aforesaid, shall well and truly have kept and performed, and shall well and truly keep and perform the condition of the said bond aforesaid, and shall in all respects have performed, and shall continue to perform the duties of their office aforesaid, then this obligation to be void, otherwise it shall remain in full force and virtue. Amelia A. Russell, (seal.) R. B. Russell, (seal.) Ignatius Flowers, (seal.) Joseph F. Brock, (seal.) R. J. Bland, (seal.)’ And the said defendants, Brock and Henderson, aver that at the time of the execution of said last-mentioned bond, no suit or action was then pending on said bond, against the sureties therein, or their legal representatives, or against any of them, by reason of which, and of the execution of the said last-mentioned bond as aforesaid, they, the said Brock and Henderson, being the securities on the said bond so as aforesaid executed by Amelia A. Luckett, now Amelia A. Russell, as administratrix ad colligendum on the estate of James Luckett deceased, were forthwith discharged from the obligation of said bond, to wit: the said writing obligatory sued upon in this action, and *the same became, and now is, null and void in law, in so far as regards the said Brock and Henderson ; and this the said defendants, Brock and Henderson, are ready to verify; wherefore they pray judgment.”
    To this plea the plaintiff filed a special demurrer, and assigned the following causes of demurrer, to wit: “ 1st. Because said grant of administration to said R. B. Russell and wife, stated in said plea, was, and is, null and void. 2d. Because said plea does not show that the letters of administration of Amelia A. Luckett (now Amelia A. Russell), were revoked or annulled ; and because it does not appear what kind of relief the sureties of the said Amelia prayed for, nor that any relief was adjudged to them by the probate court. 3d. Because the said plea is in other respects informal and insufficient, and commences by defending the force and injury when, &c., which is bad.” The Court sustained the demurrer, and the defendants refusing to answer, or defend further, gave judgment final in favor of the plaintiff for ‡ 15,480.66. On the 9th day of May, 1842, the defendants removed the case to this Court by writ of error. At the November term, 1842, of the said Circuit Court, to wit, on the 17th day of December, 1842, the plaintiff moved the Court to amend the judgment entered at the May term, 1841. Upon the trial of which motion it appeared, that on the back of the declaration in the case, a memorandum is indorsed, as made at the May term, 1841, in the following words, to wit : “ The defendants having failed to answer over, judgment ordered by default and consent for $L5,480.66, 18th day.” Which words, “and consent,” were interlined in said memorandum in the handwriting of the Judge of said Court.. It was also proven that the attorneys of the defendants consented to the entry of the judgment, and that the calculation of the amount for which it was entered was made at the bar by the counsel for the plaintiff and defendants. Upon this evidence the Court sustained the motion, and ordered the judgment to be amended and entered, nunc pro tunc, for $ 100,000, to be discharged by the payment of $15,480.66, and costs, as by consent. The motion and amendment were objected to by the counsel of the defendants, who had removed the case to this Court, the counsel who -defended the case in the Circuit being no longer retained.
    Five errors are assigned, to wit:
    1st. The Court erred in rendering judgment against all the defendants jointly, when the process was not served on William Henderson, one of the defendants, who did not plead.
    2d. The Court erred in sustaining the plaintiff’s demurrer to the defendants’ plea in bar.
    3d. The Court erred in rendering judgment in assumpsit, when the action w-as in debt.
    4th. The Court erred in rendering judgment final, without the intervention of a jury to assess the damages sustained (if any) by a breach of the conditions of the writing obligatory sued on.
    5th. The Court erred in amending the judgment, eighteen months after its rendition, and at a subsequent term, and without notice to the defendants.
    
      J. B. Thrasher, for plaintiff in error.
    This was an action of debt in the name of the Judge of Probate, for the use of Samuel Luckett, administrator, with the will annexed of James Luckelt, deceased, v. Robert R. Russell, Amelia Jinn Russell, Joseph F. Brock, William and George Henderson, on the administration bond of the said Amelia Ann Russell, for $100,000, as administratrix ad colligendum of James Luckett, deceased. Judgment was rendered in favor of the plaintiff on the breaches assigned for $15,480.66, by the Court below, without the intervention of a jury to assess the damages.
    Five errors have been assigned to reverse the judgment; 1st. That the Circuit Court erred in rendering judgment against all the defendants jointly, when process was returned “ not found ” as to William Henderson, one of the joint defendants.
    The attorney for two of the defendants, as it subsequently appears from the record, craved oyer of the writing obligatory, by stating that “the defendants crave,” &c. without naming them ; and then proceeded 'to file a plea in bar for Joseph F. Brock and George Henderson. The only legitimate interpretation of the record is, that “ the defendants who had been served with process came,” &c. The record will admit of no other construction. If the attorney who craved oyer of the writing obligatory had intended to appear for William Henderson, he would doubtless have plead for him afterwards in conjunction with the other defendants. This question was settled in the case of Moore v. Parker, 3 Littel, 268 ; and fully recognized in 1 Howard, 530.
    2d. The Court erred in sustaining the demurrer to the plea of the defendants, pleaded in bar of the action. The statute is, that “ when sureties for executors, or administrators, br their representatives, conceive themselves in danger of suffering thereby, and petition the Court for relief, the Court shall summons the executor or administrator, and shall have full power to order either that they shall give good counter security, or that they shall execute a new bond with good security,” &c. The form of the bond is given in the statute. H. & H. 398, sec. 46. The statute further provides, that, “ upon the execution of the new bond with security, payable and conditioned as aforesaid, all the sureties to the former bond shall be forthwith discharged from the obligation thereof.” H. & H. 399, sec. 47. The plea to which the demurrer was sustained, is in the very words of the statute. The new bond is set out in the plea, and the statute is, that when such new bond is executed, the obligors in the old bond shall be forthwith discharged. This suit is on the old bond ; from which the obligors were discharged by law.
    3d. The Court erred in rendering judgment in assumpsit, in an action of debt, against all the defendants. The judgment in debt, is in all cases, when rendered for the plaintiff, that the plaintiff recover his debt, and, in general, nominal damages for the detention. 1 Chitty’s PI. 112.
    4th. The Court erred in rendering judgment final, without the intervention of a jury to assess the damages (if any) sustained by a breach of the condition of said writing obligatory.
    This is a most glaring error in the record. The penalty of the bond is $100,000, and the judgment of the Court, whether by default or a demurrer, is for $15,480.66 damages, rendered by the Court without the intervention of a jurj'. It is difficult to conceive upon what principle the Court undertook to assess the damages without the intervention of a jury. The form of the appointed judgment by default, and upon demurrer, on a penal bond, with or without condition, is given in the 1st volume of Saunders’s Rep. 58, note (1). In either case, the judgment of the Court is stayed until a jury come, and, on writ of inquiry, assess the damages. Such is believed to be the universal practice on penal bonds, both in England and in America. 8 Johns. R. 88; 19 Johns. R. '311. The statute of this State, however, is conclusive on the subject. The language is imperative, that a jury shall be summoned to inquire of the truth of every one of the breaches, and to assess the damages. H. & H. 614, sec. 2.
    Since the writ of error has been sued out in this case, however, and since the record has been filed in this Court, to wit, at the November term, 1842, of the Claiborne Circuit Court, eighteen months after the rendition of the original judgment, the Circuit Court, on motion of the plaintiff in the Court below, upon parol testimony, and without notice to the defendants, proceeded to amend the original judgment, by rendering a distinct and wholly different judgment, ordering it entered as of the 12th of June, 1841, for the judgment of the Court, nunc pro tunc. The legality of this amendment constitutes the fifth assignment of error.
    
      It is believed to be a principle of law of universal application, that no judicial decision can be re-adjudged, re-examined, altered, or amended by the same tribunal at a subsequent term, however erroneous the first adjudication may have been ; otherwise, a suit'at law would be interminable. The rule of the Common Law is to consider the proceedings of Courts in fieri until judgment is given, and until then they are amendable ; but when judgment is once given and enrolled, no amendment is permitted at any subsequent term. 3 Bl. Com. 40?. A general judgment cannot be amended at a subsequent term, so as to make it special. Ohio Cond. Rep. 168. 1 J. J. Marshall’s Rep. 365 ; Green v. Dodge, et al. Ohio Cond. Rep. 638. “ A nunc pro tunc order cannot be made out at a subsequent term, when the power and jurisdiction of the Court have terminated.” Ibid. Nor “can a nunc pro tunc order be founded upon parol proof of what was ordered to be done at- a previous term.” Ibid.
    Yet by the statute of -jeofails, H. & H., p. 618, s. 24, where there is in the record or decree of the Court, any mistake, mis-cal-culation, or mis-recital of any sum or sums of money, quantity of merchandise, or other thing, or of any name or names, and there shall be among the records of the proceedings in the suit, any verdict, bond, bill, note, or other writing of the like nature or kind, whereby such judgment or decree may be safely amended, it shall be the duty of the Court, and of the Judge in vacation, to amend such judgment or decree — provided, that the opposite party shall have had reasonable notice of the application for such amendment.
    The amendment in question was not authorized by the statute; there was no notice, to the opposite party of any kind ; the defendants had changed their attorney ; and their attorney in this Court, by accident only, heard the motion called, and opposed it. Neither was there among the records of the proceedings in the suit any verdict, bond, bill, note, or other writing of .the like nature or kind, whereby such judgment could be amended with safety. The evidence upon which the amendment was made, rested solely in parol. It is believed that no adjudged case can be found in any respectable author, in which a judgment has ever been amended after the expiration of the'term at which it was rendered,— unless there was in the record or proceedings something by which it could be amended with unerring certainty. In the case at law, a new and different judgment for $100,000 was rendered. If it shall be said, that the penal bond was a sufficient guide to this new judgment of a $100,000 — yet what verdict, bond, bill, note, or other writing of the like nature or kind indicated $15,480.66, as the true measure of damages ? It is said that there was a memorandum on the back of the declaration, however, in the following words, to wit, “ The defendants haying failed to answer over, judgment ordered by default and consent for $15,480.66, 18th day ;” which words, “ and consent,” were interlined in the handwriting of the Judge. By whom, or when this memorandum was thus made, we are not well informed. It was not, however, the kind of evidence upon which the statute authorized amendments. It was neither verdict, bond, bill, note, or other writing of the like nature or kind, upon which alone the statute would authorize amendments.
    The statute having prescribed a mode-of amending records, that mode could not be departed from. “ Every statute that limits a thing to be done in a particular form, although it be done in the affirmative, includes in itself a negative, viz., that it shall not be done otherwise.” Plowd. Com. 113; 20 Wendell, 250; 1 Paine’s Rep. 406.
    Great sanctity, however, seems to be attached to the alleged (but disputed) fact, that the words “and consent” were interlined in the memorandum, in the handwriting of the Judge ; yet even admitting that fact, it was an unofficial act, neither falling within the letter nor the purview of the statute authorizing amendments. The notes made by a Judge upon the docket, are no part of the record, nor are they evidence for any purpose ; a judgment cannot be amended by them. Dickson v. Hoff'''s Adm’r., 3 Howard, 165 ; 1 Howard, Rep. 39. In Dorsey v. Pierce, 5 Howard, 174, it was decided, “ that the Court below erred in sustaining a motion to amend the judgment without notice, to the plaintiffs below; and that after the term had passed, the judgment was no longer under the control of the Court; that the injured party’s remedy was by writ of error to the Appellate Court.” The same principle was settled in the case of the Planters Bank v. 'Neely et al., January term, 1843, of this Court.
    
      
      H. T. Ellett, for defendant in error.
    
      i I. The first error assigned is, that judgment was taken against all the defendants below jointly, whereas William Henderson was not served with process.
    The service of process was waived. It appears by the record that all the defendants appeared by attorney, made full defence, and craved oyer of the bond declared on. It has been repeatedly decided in this Court, that appearance cures the defect of service of process.
    II. The second error.alleged is, that the Court erred in sustaining the demurrer to the defendant’s plea.
    'The demurrer was properly sustained.
    I. For want of form. The plea commences by defending the force and injury, when, &c., which is bad on special demurrer.
    2. For defect of substance. It sets'up a subsequent grant of letters ad colligendum to R. B. Russell and wife, without alleging a revocation of the original letters of Mrs. Luckett. This second appointment was void.
    There was no vacant estate. The administration of James Luckett’s estate was already filled.
    The Court, on petition of the sureties for relief,' could not grant letters to a third person in the first instance. It could only require counter security or a new bond (How. & Hutch. 398, s. 46); and on failure to comply, the letters might be revoked, and a new appointment made. How. & Hutch. 399, s. 48.
    A grant of administration, during the capacity of executor to act, is void. 8 Cranch, 9.
    III. The third error applies to the form of the judgment, but this is not substantial, and-is cured by the statute of jeofails. 2 Howard, 823.
    But all these, as well as the remaining errors, are cured by the amended record filed and annexed to the original 'record in the cause.
    From that it appears that the Court below, at November term, 1842, directed a new entry of said judgment to be made nunc pro tunc, showing that the original judgment was entered by consent of the defendants themselves.
    
      The grounds on which the amended entry was directed to be made, are: first, the written memorandum of the judge himself on the back of the declaration, showing that the judgment was taken by consent; and, secondly, the statement of the attorneys, both of the plaintiff and defendants, that such was the fact; that the amount was settled by calculation between the counsel, and that the judgment was taken in pursuance of the desire of the defendants’ counsel.
    The power of the Court to order the amended entry, is, in fact, the only question in the cause.
    The Court did not direct the original entry on the minutes to be altered or amended, but treated it as a mere mis-entry without any thing to support it, and directed the judgment in the cause to be entered, nunc pro tunc, according to the facts. It was competent for the Court to do this, without refererice to the power to amend or alter the minutes as recorded ; for the entry of a judgment without the verdict of a jury, or without something to show a consent of parties, was indeed a mis-entry, which the Court might have relieved against on motion, or wholly disregarded ; and the right of a Court to enter judgments or orders, nunc pro tunc, when they have (been omitted to be entered at the proper time and place, is too familiar in practice to be seriously questioned.
    But the right of amendment at Common Law is large enough to embrace this case.
    In Cogan v. Ebden, et al., 1 Burr. 383, motion was made to set aside the verdict on affidavit of some of the jurors. Lord Mansfield and Denison, J. thought that there might be some method of rectifying the verdict according to the truth of the case, from the Judge’s notes, if they were sufficiently specific, and afterwards the amendment was made on affidavits of the jurors.
    Judgment against executor de bonis propriis, amended by making it de bon. test, et si non, &c., after writ of error brought, in nullo est erratum pleaded, and argument in the Exchequer chamber. Short v. Coffin, Ex’r. 5 Burr. 2730 ; Doug. 116.
    
      Postea amended by the Judge’s notes, after final judgment, and error brought, and lapse of two terms. 3 Durnf. & East, 749. For numerous cases of amendment of postea, verdict, judgment, &c., by the Judge’s notes, after error'and joinder, see 2 Sellon’s Pr. 408, ch. 9, s. 8, letter D.
    In Tittolsonv. Cheatham, 8 Johns. 95, a judgment was amended after error and joinder, and the .lapse of more than a year on the authority of the cases cited, and the Court say, “ It would be disgraceful 'to our judicial proceedings, if mere clerical mistakes, in matters of form, were not susceptible of ready redress.”
    Judgments amended after several terms, nunc pro tunc, for the purpose of giving them a preference, and even against bail. Close v. Gillespey, 3 Johns. 356; Seaman, et al. v. Drake, 1 Caines, 9.
    But it is said that when judgment is given and enrolled, no amendment is permitted in any subsequent term. 1 Bac. Ab. tit. Amendment G, p. 167 ; 3 Black. Com. 407 ; 2 Sellon’s Pr. 458.
    All these books, however, show that amendments may be made in the record, after several terms, pending a writ of error, after assignment and joinder in error, and even after argument, and that it may be done either in the Court where judgment was rendered, or in the Appellate Court. And so are all the authorities above cited.
    The apparent confliction is reconcilable in two ways.
    1. The judgment of the Court cannot be amended or altered after the term at which it is given, but the entry of the clerk may be amended so as to conform to the actual facts of the case. And this is believed to be the true and sensible rule.
    2. That the proceedings are considered in fieri during the pend-ency of the writ of error, and therefore amendable by the Common Law.
    Courts are liberal in the allowance of amendments, where the justice of the case requires it, and especially where the error complained of is the act or omission of their own officers.
   Mr. Chief Justice Sharkey

delivered°the opinion of the Court.

This suit was instituted on the bond of Mrs. Russell as adminis-tratrix ad colligendum on the estate of James Luckett, her former husband.

We shall confine our remarks to two of the grounds assigned for error ; first, that the Court erred in sustaining the demurrer to the defendants’ special plea ; and, second, that the Court erred in amending the judgment at a subsequent term.

The defendants craved oyer of the bond and condition ; and two of them, to wit, Brock and Henderson, pleaded specially that they were sureties of Amelia Russell, and conceiving themselves in danger of suffering on account of their suretyship, they petitioned the Probate Court for relief; whereupon, the' said Amelia Russell, together with her husband R. B. Russell, with whom she had intermarried, voluntarily came into Court, and the Court thereupon ordered that letters of administration ad colligendum on the estate of James Luckett, be granted to R. B. Russell and Amelia Ann Russell, they having taken the oath, and entered into bond, with Ignatius Flowers, Joseph F. Brock, and Richard J. Bland as sureties ; in compliance with which order, the said Russell and wife entered into a new bond, which bond was approved by the Court. The bond is set out in the plea, which is in conformity with the provisions of the 46th section of the law in relation to the estates of decedents, H. & H. Dig. 198, the recital and condition being in the following words : “ The condition of the above obligation is, that whereas the above bound Amelia A. Russell, administratrix ad colligendum of the goods, chattels, and credits of James Luckett, deceased, heretofore executed a bond payable to N. McDougall, Esq., Judge of Probate, and conditioned for the discharge of her duties qs ad-ministratrix ad colligendum aforesaid, which said bond bears date 1st March, 1838 ; and whereas the said Amelia A. Russell (late Amelia A. Luckett) has since intermarried with Robert B. Russell; now, therefore, if the said administratrix and administrator ad colli-gendum as aforesaid, shall well and truly have kept and performed, and shall well and truly keep and perform the condition of the said bond aforesaid, and shall in all respects have performed, and shall continue to perform the duties of their office aforesaid, then this obligation to be void, otherwise it shall remain in full'force and virtue.” The plea avers, that at the time of executing the last bond, no suit or action was pending on the first bond, and sets up the last bond as a bar to the action. The statute seems to be too plain to leave any doubt as to the legal effect of the second bond on the sureties in the original. The 46th section provides, that where sureties for executors or administrators consider themselves in danger of suffering, and petition the Court for relief, the Court shall summon the executor or administrator, and shall have full power to order that counter security be given, or that a new bond be executed with good security. The statute declares that such new bond shall relate back to the time of granting the letters, and shall be as effectual in every respect, as if it had been given before the grant of the letters. It also prescribes the form of the condition, which corresponds with that set out in the plea. The 47th section declares,'that upon the execution of the-new bond, all the sureties to the former bond, and their legal representatives, shall be forthwith discharged from the obligation thereof, except only as to actions pending on the original. The 48th section provides, that if an executor or administrator shall fail to comply with the order of the Court for counter security, or for a new bond, the Court may revoke his authority. Under these •several provisions it is manifest, that sureties who apply for relief, are absolutely discharged from all liability where new bond is given. The law furnishes them with a bar to any action which may after-wards be brought on the original bond.

The principal objection taken to the plea is, that the grant of administration to R. B. Russell, or the new grant of administration was void, because Amelia Russell had not been removed, and that no new administration can be granted without removing the first administrator. The answer to this objection is plain. No new administration was granted. New security was taken for the previous and subsequent faithful administration. In requiring Russell to join in the bond, the Court was but carrying out the legal consequences of the marriage of the administratrix. By the marriage,, Russell became united with his wife in the administration ; and when she was called on to execute new bond, it was of course proper that he should join in it. The bond recites the reason why Russell is joined in it, to wit, his intermarriage with the administratrix since the giving of the first bond. The Court did not profess either to remove the admin-istratrix, or to grant new administration. It would be singular, indeed, if a Court should require a new administrator to execute a bond that his predecessor had discharged his duty. The proceedings of the Court do not admit of such interpretation. The demurrer to the pleaj then, should have been overruled.

In the next place, had the Court power to amend the judgment at a subsequent term ? The judgment was rendered at May term, 184L, and the amendment was made at December term, 1842. When the demurrer to the plea was sustained, the defendants refused to plead over, and the Court proceeded to render a judgment against all of the defendants for $ 15,480.66 damages. This judgment was manifestly erroneous. The plaintiff had assigned breaches in his declaration, and his right torecover depended on the proof of those breaches, and of the damages consequent thereon. The Court cannot assess damages for the breach of a condition of a bond, any more than it can in any other case of unliquidated damages. It was necessary that a writ of inquiry should have been awarded. To obviate this difficulty, a motion was made at a subsequent term to amend the judgment. In support of the motion, a memorandum, on the back of the declaration, made at May term, 1841, was introduced, which is in these words : “ The defendants having failed to answer over, judgment ordered by default and consent for $15,480.'66, 18th day.” The words “and consent” were interlined in the memorandum in the handwriting of the Judge. It also appeared from parol proof that at the May term, 1841, the .judgment was rendered by consent of the defendants5 attorneys, and that the amount was settled by calculation'between the counsel. Courts may amend the mistakes.or errors of their clerks, provided there is anything in the record or proceedings to amend by ; but, at a subsequent term, they cannot amend their own judgments, unless it be in such a way as provided for by the statute. But in no case can an amendment be made, unless there be something in the proceedings to amend by. 1 J. J. Marshall’s Rep. 362; 1 Bac. tit. Amendment of Judgment. This memorandum constituted no part of the proceedings in the cause. r It amounts only to parol proof. It is no better than were the Judge’s notes on the docket, which were held to be insufficient to amend by in the case of Dickson v. Hoff’s Adm’r. 3 Howard, 165. In the case of Walker v. Commissioners of the Sinking Fund, decided at July term, 1843, this Court also announced the doctrine that amendments cannot be made at a subsequent term, unless it be done in compliance with the statute. A record cannot be amended by parol. The courts in England have gone far in making amendments, but they do not amend their solemn judgments, unless the mistake is apparent from the record. This was rather taking proof in support of a judgment than an amendment. At one term a judgment was entered, without any showing in the record that an inquiry had been awarded, and a finding returned by the jury ; or that any confession of record had been made, which, perhaps, would have been sufficient; and at a subsequent term, and that too after a writ of error had been taken, the Court heard proof of facts in support of the judgment, and entered a new judgment nunc pro tunc. In support of the amendment, counsel have insisted, that the first judgment was a mis-entry — a mere nullity, without anything to support it, and the Court had a right to disregard it. This admission would give up the case. How could the Court afterwards undertake to render a judgment for damages without a verdict ? Counsel resisted the second judgment, and placing the first out of the question, then all the admissions and calculations of damages, which had taken place at the previous term, were but proper evidence for a jury. They were not admissions of record, and could only be used as other admissions of a party to a suit, as evidence of the plaintiff’s right, and the extent of that right. A Court might as well undertake to render a judgment on an open account, on the ground that it had been admitted to be just. So that if it was an amendment of the judgment, it was an error; and if, on the other hand, it was the entry of a new judgment, treating the first as a nullity, it was also an error.

It is possible the merits of the case may be such as to induce the Court below to allow the plaintiff to amend, by replying to the defendant’s plea; and the judgment will therefore be reversed, and the cause remanded.  