
    PROBASCO against PROBASCO.
    A judgment twenty years old, amended by correcting the Cbristian name of the plaintiff.
    Garret Probasco, administrator of Christopher Probasco, commenced a suit in this court, against Abraham Probasco, and obtained a judgment. In entering the judgment on the minutes of the court, the name of George was used, in lieu of Garret. The writ, declaration and plea, were all in the name of Garret. This judgment was obtained twenty years ago, but was delayed by injunction out of chancery, until 1806. In 1810, the land of Abraham Probasco was sold under it. The error being discovered, it was now moved, on the part of the plaintiff, to amend. The motion was opposed by the counsel of Christopher Probasco, who set up a claim to the land, under a purchase from Abraham Probasco, made previous to the judgment.
    
      Boggs, for the plaintiff.
    It is a mere mistake, a misprision of the clerk, and amendable. Pat. 126; 1 Bur. 164; 7 Binney, 486; 1 John. Pep. 184; 7 John. Cases, 29; 3 John. Pep. 95.
    
    
      I. H. Williamson, on the same side.
    There is no evidence of a bona fide purchaser being affected by the amendment asked for. In modern times, courts [*] are liberal in allowing amendments in furtherance of justice. 5 Bur. 2834, 2730 ; 2 Stra. 1132, 1156, [738] 1182. Amendments will be allowed in a mistake in the name of a party. 1 Lord Pay. 188; Cro. Car. 574, 594; Cro. Jao. 682; Cro. Eliz. 864; Hob. Pep. 327. There is no time limited in which amendments are to be made. 4 Hod. 371; 12 Mod. 384. The entry of judgment was notice to a purchaser, had there been any. 1 Caines Pep. 9 ; 3 John. Pep. 526, and all amendments affect more or less third persons.
    
      P. Stockton, contra.
    This is a question of strict law; the court has no discretion, but is prohibited by the statute. At the Common Law, a judgment can only be amended during the term; after the term, it is only amendable under the statute. 8 Coke, 168, Blackmore’s case. The statute of Henry VI. only authorizes amendments while the record is before the court. The third section of our act is the same. A mistake in the Christian name is not amendable. Oro. JEliz. IfiO, 609 ; 2 Vin. 302. The amendment asked for, is a matter of substance. At all events, a judgment, if amended at all, must be amended by the proper documents. Here is nothing to amend by. A judgment may in certain cases be amended by the verdict. This judgment is bottomed on a report of referees, and the report not produced. The report is the proper document to amend by. 2 Tidd, 662 ; 2 Stra. 787. The seventh section of our act prohibits amendments after the term; and this section is not to be found in any of the English statutes that he could find; and was evidently intended to prevent amendments after the term. Again this amendment is called for after twenty years. Should this practice be allowed, it would endanger purchasers.
    
      Williamson, in reply.
    There is a clear distinction between an error of the court in rendering judgment, and a mere mistake of the cl^rk, in entering a judgment. He admitted, that the court could not amend an error of its own in pronouncing the judgment, after the term. He acknowledged that the seventh section of our statute was a surprise upon him; but the construction given to it by Mr. Stoekton, rendered it repugnant to the other sections of the same act. As to the documents to amend by, all ‘that is necessary to be made out is, that there was a mistake in the entering the rule for judgment; and the report of the referees was not necessary to prove that. We only ask to have on the record, what was actually done by the court; not to alter the judgment, but to maintain the record true. There is no limitation of time to amendments.
    [739]
    
      Boggs, on the same side.
    The seventh section can mean nothing more than that the clerk shall not, of his own accord, amend the record after the term.
    
      The ease was argued at the last term; and at this term, the opinion of the court delivered.
   Kierpatrick, C. J.

Had considered the subject in vacation, and was clearly of opinion that the amendment should be made.

Rosseij,, J.

Had no doubt but what arose from the 7th section of our act; and he was, on the whole, satisfied with the explanation given it.

Pennington, J.

The case has been learnedly argued, and numerous authorities cited; I have looked into them all. It appears very clear to me, that the current of authorities, for two centuries back, is in favor of the amendment. This is not an error of the court in rendering judgment, but a mere misprision of the clerk; a mistake in the Christian name of the administrator; a slip of the pen. It woidd be a reproach to our judicial system, if such a clerical error should defeat a substantial recovery. Length of time is urged against this amendment; but this is sanctioned by precedent. 4 Mod. 871; 12 Mod. §84- Danger to purchasers is also pressed upon the court. As to Christopher Probasco, who opposes this motion, if his title is good, the judgment will not affect him; [*] he does not pretend to be a subsequent bona fide purchaser, without notice; nor do I very well perceive how any one could allege the want of notice from this mistake. The person against whom the judgment is had, is truly named; the character and right in which the plaintiff is sued is truly named; and whether his name was George or Garret, cannot, in my opinion, materially affect the question of notice.

Again, the seventh section of our statute, respecting amendments and jeofails, is set up as a positive prohibition to all amendments of judgment after the term in which the judgment is rendered. If this construction is the true one, this section is not only at variance with a settled course of adjudications, but with other parts of the same act; for the first section, which is copied from 9 Henry 5, in express terms, empowers the court, in the cases there put, to amend the record, both before and after judgment, as long as the same is before them. I confess I have been somewhat at a loss for the true construction of this seventh section of the act; for I have not been able to find any corresponding British statute, from which statutes every other part of our act respecting amendments and jeofails is taken. But I find, in the New York act, concerning [740] amendments, a section in substance the same, but with some alteration in the phraseology, calculated to favor Mr. Bogg’s construction, that it was only intended to prohibit the clerk of his own head, without the direction of the court, to amend the record after the term in which judgment is entered. The marginal note to that section is in the following words: “ Clerks not to alter records in any term after judgment.” And I am inclined to the above construction as a reasonable interpretation, well adapted to reconcile apparently discordant parts of the same act. The judges in New York do not consider this section as changing the doctrine of amendments. 3 John Hep. 95. At all events, I am persuaded that the legislature did not intend to introduce a section for the purpose of defeating the principal scope and design of the act.

[*] Another objection to this amendment is, that this judgment being founded on a report of referees, and the report not being to be found, there is nothing to amend by. If the amendment called for was to be found in the report only, for instance, the sum found, and could be ascertained in no other way, there might be something in the objection. But it appears to me, that the writ, declaration and plea, all being in the same name, and all right, afford sufficient antecedent matter to amend by; amendments are in the sound discretion of the court. The application is reasonable, and the plaintiff entitled to his rule.

Amendment allowed.

Cited in Herbert v. Hardenbergh, 5 Halst. 222; Davis v. Township of Delaware, 13 Vr. 515.  