
    Noah Clark, in Error, versus Ezekiel Lamb, Executor, &c.
    A verdict in this Court may be amended by the judge’s notes, after error brought and joinder in error.
    Where three counts alleged a promise to the plaintiff as executor and a fourth a promise to the testator, ail being for the same cause of action, and the defendant pleaded to the three first, that the action did not accrue to the plaintiff within six years, and to the fourth, that the action did not accrue to the testator within six years, and the jury found for the pfaintiff upon the first issue, saying nothing about the other, the plaintiff was allowed, after error brought, to amend die verdict by tile judge’s notes, upon payment of costs.
    This was a writ of error to reverse a judgment of this Court rendered at September term 1827, in Hampshire. The original writ contained only one count, which was for money had and received by Clark to the use of Ezekiel Lamb as executor of Daniel Lamb. At the return term three new counts were filed ; one for money had and received to the use of the testator, and a promise in consideration thereof to pay the executor ; another, on an insimul compulassent between Ezekiel as executor and Clark, of money due to Ezekiel as executor, and a promise to, pay him as executor ; ana a third, for money had and received to the use of the testator, and a promise to pay the testator. Clark pleaded, 1. non assumpsit to the whole declaration ; on which issue was joined to the country. 2. To the first, second and third counts, that the causes of action did not accrue to Ezekiel in his capacity of executor, within six years ; and issue was joined on that fact. 3. To the fourth count, that the action did not accrue to the testator within six years ; and issue was joined on that fact. 4. Non assumpsit infra sex annos, to the whole declaration.
    
      Sept. 23d.
    
    At the trial, before Wilde J., the jury returned a verdict that “ the defendant (Clark) did promise the plaintiff (E. Lamb) in manner and form as he has alleged in his declaration, within six years next before the commencement of said action,” and assessed the damages. Judgment was entered on the verdict.
    It was assigned for error, that the verdict does not find the whole" of the issue joined.
    After error brought, Wilde J. certified from recollection, that the principal part of the evidence offered by the plaintiff was applicable to the second and third issues, and that it tended to show that Clark had fraudulently obtained from the testator divers notes of hand due to him, and had collected some of the notes within six years before the commencement of the action ; that the counsel of Clark contended that the statute of limitations began to run from the time when the notes were obtained, which was more than six years before the action was brought, but that the jury were instructed to find for the plaintiff for all the sums of money -which Clark had received on the notes within six years before the commencement of the action ; that the greater part of the plaintiff’s evidence, as to the damages, applied to this subject of inquiry ; and that there was no sufficient evidence to support the verdict as to the amount of damages, vnless the jury had found for the plaintiff as to the notes of hand so collected as above mentioned.
    
      G. Bliss and J. H. Jlshmun
    
    contended that the verdict could not be amended after judgment. Grant v. Astle, 2 Doug. 722; Brown v. Chase, 4 Mass. R. 436; Hutchinson v. Crossen, 10 Mass. R. 251; Atkins v. Sawyer, 1 Pick. 351. The certificate is not within the rule of the Court of King’s Bench; it is not made from the minutes, but from the recollection of the judge. If such a certificate is admissible, any verdict may. be set aside upon paroi evidence. [ Wilde J. My minutes I suppose may be obtained, but my recollection was distinct, and I had the minutes of the defendant’s counsel before me when the certificate was made.] In England the verdict is drawn by the clerk ; here it is by the foreman of the jury, under the direction of his fellows ; so that if in England the court may alter the writing of the clerk, this Court will not therefore be authorized to alter a verdict taken according to our practice.
    
      Bates and Dewey
    
    relied on Petrie v. Hannay, 3 T. R. 659. They cited likewise, St. 1784, c. 29, § 14; Williams v. Hingham &c. Turnpike, 4 Pick. 349; 2 Dunlap’s Pr. 702.
    The opinion of the Court was afterwards drawn up by
    
      April term 1830
    
    
      
       In the report of this case in 6 Pick. 512, in the first edition and in some copies of the second, ;t is erroneously stated that the judgment was rendered tn the Court of Common Pleas in 1826, and that the motion for a new trial was made in that court
    
   Wilde J.

The question now to be decided on this writ of error is, whether the verdict in the original action may be amended conformably to the facts as certified by the judge ; and we are clearly of opinion, that according to all the authorities it may be so amended.

In the case of Chapman v. Gale, 2 Lev. 22, which was debt against an executor, judgment was entered up against him de bonis propriis, and thereupon error was brought, and it was assigned, that the judgment should have been de bonis testatoris, si Spc. Upon the affidavit of the attorney, that he gave his clerk instructions to enter it up according to the plea, and that it was a mere mistake of the clerk, the judgment was amended.

In the report of this case by Keble, (2 Keb. 810,) it is said, that the amendment was allowed by consent of parties ; but Levinz is rather to be relied on ; and of this opinion was Lord Mansfield, in the case of Short v. Coffin, 5 Burr. 2730, in which a similar amendment was allowed after writ of errot brought and in nullo est erratum pleaded. In the case of Doe v. Perkins, 3 T. R. 749, it was decided that the postea may be amended by the judge’s notes at any time, even after final judgment and writ of error brought, and it was said this pract’ce was as ancient as the time of Charles the First. So in the case of Rees v. Morgan, 3 T. R. 349, a judgment was amended after writ of error brought, and also in the cases of Usher v. Dansey, 4 Maule & Selw. 94 ; King v. Keat, 1 Salk. 47; Elliot v. Skypp, Cro. Car. 338; Eddowes v. Hopkins, 1 Doug. 376; and Williams v. Breedon, 1 Bos. & Pul. 329.

But the case of Petrie v. Hannay, 3 T. R. 659, is directly in point and cannot be distinguished from the case under consideration. There the defendant pleaded the general issue and the statute of limitations. A verdict was found for the plaintiff on the first issue, and no notice taken of the last. After error brought and joinder in error, (which was assigned on this point,) the court allowed the verdict to be amended by the judge’s notes, on payment of costs. In the case of Harrison v. King, l Barn. & Aid. 161, an amendment was refused ; but this was after a lapse of eight years from the rendition of judgment, and seven years after the writ of error had been brought and after the reversal of the judgment; so that the defendant in error had, as Lord Ellenborough thought, slept the sleep of death over his rights. Abbott J. says, “ the application should be made recently after the ¿rial, for the judge bears then in memory much of what has passed at the trial; whereas it is impossible to suppose, that at a great distance of time, ány human memory can recollect the circumstances.” This case, therefore, is not opposed to the general rule ; but rather confirms it, with a reasonable qualification ; so that the course of practice in England has been long well established, and it has been adopted here so far as cases have occurred requiring its salutary aid. Barnard v. Whiting, 7 Mass. R. 358; Barnes v. Hurd, 11 Mass. R. 57; Sullivan v. Holker, 15 Mass. R. 374; Patten v. Gurney, 17 Mass. R. 182. And I cannot imagine any reasonable objection that can be made to this course of practice ; on the contrary, a different course, as contended for by the plaintiff’s counsel, would greatly obstruct the administration of justice. In all proceedings mistakes will occur, notwithstanding all ordinary care, and when they do thus happen, they ought, if possible, to be corrected without injury to either party. The course of practice adopted by the courts was founded on this principle, and it applies with perfect justice to the present case. If there were any doubt as to the facts which occurred at the trial, or any question made, whether there had been a full trial on the meri's, the proper course would be to grant a venire de nova, But the case has been fully heard and considered, both as to the facts and the law ; and upon the merits of the case there non be no question which has not been already disposed of. The effect of the statute of limitations was fully consideied, and a large portion of the original plaintiff’s demand was thereby barred. The only error or mistake arose from a mere slip in drawing up the verdict, and clearly this ought not to be allowed to vacate the judgment. The verdict is, therefore, to ne amended, and on payment of costs the plaintiff in error is to become nonsuit. 
      
       See Revised Stat. c, 100, § 22; Jones v Kennedy, 11 Pick. 125; Hanley v. Levin, 5 Hammond, 227; Roulain v. M‘Dowell, 1 Bay, 490; Sagre v. Jewett, 12 Wendell, 135; Payson v. Whitcomb, 15 Pick. 212; Rowell v. Brace, 5 N. Hamp. R. 383.
     