
    William Burns, Executor of G. W. Smyth, deceased, vs. F. Stanton, et al.
    After a forthcoming bond has been given and forfeited, the original judgment cannot be amended.
    Errok from the circuit court of Adams county.
    •The facts of the case are very fully stated in the arguments •of the counsel.
    Winchester, for the plaintiff in error.
    The plaintiff in error obtained a judgment by default against the defendants in error, in the court below, at the May term, A. D., 1841, in an action of debt founded upon a bond, or bill single.. The bond was dated April’ 25, 1833, due four years after date, for $3162 50, with interest, at eight per cent, per annum, from the date thereof until paid.
    A judgment by default was taken on the 18th of June, A. D. 1841, for the sum of $4173. An execution issued upon this judgment returnable to the November term, A. D. 1841, of said court, upon which a forthcoming bond was taken, and returned forfeited. At the May term, A. D. 1842, of said court, the plaintiff in error gave notice to the defendants, that he would move the court to amend the judgment obtained at the May term, A. D. 1841, by striking out the sum of $4173, and inserting the sum of $5221 50, &c.
    The error consisted in the assessment of damages upon the bond filed in the cause. The, clerk, in calculating the interest upon the bond, only calculated it from the maturity of the bond, whereas it carried interest from, its date. This was the error sought to be corrected by the motion in the court below. The court overruled this motion, and to the opinion of the court in overruling the motion, the plaintiff filed his exceptions, and now assigns the same for error.
    
      Was this error amendable upon motion'? Our statute of jeo-fails (Rev. Code, page 125,) provides that “where in the record of any judgment or decree, there shall be any mistake, &c. and there shall be among ihe record of the proceedings, any verdict, bond, bill, note or other writing of the like nature, whereby such judgment may be safely amended, the court in which such judgment shall be rendered, shall amend it according to the very rights of the case, provided the opposite party have notice, &c.” Under this statute it appears to me manifest that an error, even in the judgment itself, if it appears to have been by mistake made, shall be amended, and if this view be correct it will obviate all, the difficulty arising under the English statute and common law practice, in relation to the distinction between clerical errors and errors in the judgment.
    The statute is imperative. The error shall be amended where it appears to have been by mistake, miscalculation, or misre-cital. But that this is a clerical error, such as is amendable at common law even, see Mechanics Bank v. Minthorne, 19 Johns. 244, and cases there cited.
    Can this error be amended after a forthcoming bond has been taken, and the judgment satisfied 1 It was upon this the court below refused to grant the motion, and upon this alone the defendants below based their objection. It will be perceived, upon reading the statute, (Rev. Code, page 125,) that it contemplates an equitable construction, “ that the amendment shall be made according to the very rights of the case.” How stand the defendants in equity 1 They admit the justness of the demand by suffering the judgment, by default, to be taken against them, yet seek to get rid of a great portion of the debt, by the mere miscalculation of interest made by the clerk. They certainly cannot be heard to complain that because they have been forced to pay a portion of the debt secured by their bond, that there-, fore in equity, they ought to be allowed the benefit of the error committed by the clerk in assessing damages against them. Suppose, on the other hand, the clerk'had made a mistake in favor of the plaintiff of a $1000, and the defendants had paid the money and satisfied such a judgment, before the mistake was discovered. Would not-the court be .authorized, in such a case, to amend upon motion of defendants, and award a writ of restitution for such an overplus ?
    The case of the Commonwealth v. Winston, 5 Rand, 546, decided under the statute of Virginia; and of which our statute is almost a literal copy, is a caserdirectly in point. The judgment was satisfied at the time the motion was made to amend. The error consisted in a miscalculation of interest due upon a bond. The court allowed the 'amendment to be made. See also the case of Eubank v. Rall’s Executor, 4 Leigh, 308, where there was an over-assessment of damages, or the judgment for too large a sum.
    
      Quitman and McMurran, for defendants in error.
    A short statement of the motion.and o: the record will show the only point ts presented by
    A motion was entered by the plain' of the circuit court of Adams county by default final, entered at the May. amended by striking out the sum sum of $ 5221■£&, so as to increase $ 1048 x6ff0iy; and that plaintiff have 1842, Bgment |case, be mseif|ng the Idgment execution on the judgment thus amended, and levy theVlifference.
    Upon the hearing of this motion the bill of exceptions shows the following state of facts: that the judgment by default final sought to be amended, was rendered at the May term, 1841.
    That on the 20th July, 1841, an execution was issued against the defendants to the November term, 1841.
    That the execution was levied, and a forthcoming bond taken on the 6th October, with A. L. Bingaman, security, which bond was forfeited, and became a statutory judgment at the November term, 1841, of said court. *
    And that the motion to amend the original judgment, was made at the May term, 1842.
    The court below overruled the motion, and the question arises, (admitting the judgment by default to be less than, ?* ought to be) was the decision of that court correct 1
    
    
      The ground on which the motion was made, we presume is founded on the provision contained in the 96th section of the circuit court law, to be found in the old Revised Code, page 126. This section provides that where there is any mistake, or miscalculation of any sum of money, -&c. and there shall be among the record of the proceedings, any writing, whereby the record may be safely amended, the same may be done on motion after notice to the opposite party, &c.
    But the answer to this, is that when the motion was made, it was beyond the power of the court to interfere. An execution has issued on the judgment, a forthcoming bond taken and forfeited, and a term of the court passed, and this motion made at a subsequent term.
    A forthcoming bond forfeited, has the force and effect of a judgment, and is a satisfaction of the original judgment. The original judgment is thereby extinguished or merged in the judgment on the bond; and the court cannot go behind the judgment on the bond to inquire into any mistake in the original judgment. The judgment on the bond would have to be set aside in the first place, which could be done only at the return term of the forthcoming bond. The whole current of the decisions of this court sustains this position. Weathersby v. Proby, 1 How. Rep. 98. Witherspoon v. Spring, 3 How. Rep, 60. King v. Terry, 6 How. Rep. 613. Bank U. S. v. Patton, et al., 6 How. Rep. 200, 233, 237, &c.
    Thus, in the last cited case, the court, in delivering their opinion, say that, “whilst this new judgment” (the judgment on the bond) “ is in force, no proceedings can be had upon the original judgment. The security of the o\d judgment is merged in the higher security of the new one. It is the same in principle as though a second judgment was had in an action of debt upon the old judgment, or upon the bond after the breach of its condition.” Page 237. So, on page 239 of the last cited report, the court further say, “ the original judgment” (after the judgment on the bond) “can never be revised in the circuit court, it cannot be there revised in a proceeding ex directo,” &c.
    
      We conceive that these authorities, and other decisions of our court of a like character, are conclusive upon the question.
    The application came too late. • To avail, it must have been made in the circuit court before the judgment on the forthcoming bond.
   Ml. Justice Clayton

delivered the opinion of the court.

This was a motion made at the May term, 1842, of the circuit court of Adams county, to amend a judgment of that court, rendered at the May term, 1841, by striking out therefrom the sum of $4173, and inserting the sum of $5221 50; and that the record of the judgment be also amended so as to be made conformable thereto.” The original judgment was rendered at the May term, 1841, an execution issued, upon which a forthcoming bond was given, and returned forfeited, at the November term, 1841. The question then-arises, whether the original judgment could, after all this, be amended. It seems to be conceded, that if the application had been made before the forfeiture of the bond, that the amendment might have been made.

The statute, in regard to the amendment of judgments, H. & H. 618, is very liberal in its provisions, and there is no express limitation as to the time within which the application must be made. Yet some limitation must necessarily grow out of the settled rules of practice in the courts. By the levy of the execution and the forfeiture of the bond, the original judgment was satisfied. After the expiration of the term at which the bond was returned forfeited, a motion to quash it, could not be entertained, it had all the force and effect of a judgment, and stood in place of the original judgment.'

Suppose the present motion were sustained, the judgment upon ‘the bond would not thereby be affected. An execution upon the judgment so amended could not be sustained. King v. Terry, 6 How.; it would be absolutely void. 3 How. 60. The -original judgment, after the forfeiture of the bond, is no longer in existence, and we do not see how it could again be revived. Clark v. Anderson, 2 How. 852. A writ of error will not lie to it; 3 How. 34, and an injunction on it will not stay the execution on the new judgment. 1 How. 64. We do not see, therefore, on what principle the motion could be sustained, or, if sustained, what advantage the plaintiff in error would reap by it.

The cases cited from 5 Ran. 546, and 4 Leigh, 308, do not come up to the point. In neither of them, had there been a forthcoming bond given and forfeited. That circumstance constitutes the real obstacle in the way of the plaintiff in this motion.

We regret that the statute does not extend to the case, but it is out of our power to enlarge it by construction, when such a course would overturn principles that have been deemed settled and at rest for years.

The judgment of the court below is affirmed.  