
    
      W. M. Russell et als., for McKinney & Porter v. A. S. Colyar & A. S. Marks.
    Supreme Court. Power to correct mistake in judgment, etc. The Code 4501, 4502, allowing the Supreme Court, after the term, to vacate, or correct mistakes in judgments given “ through inadvertence or oversight,” does not apply to any judgment which was given upon the deliberate consideration and judgment of the Court, though the Court may have since adopted a different ruling as correct.
    MotioN to Correct Judgment.
    ¥m. B. Beese for tbe motion.
    John H. Savage against the motion.
   David Campbell, Special Judge,

delivered the opinion of the majority of the Court.

The question is, as to the power of the Court to vacate a judgment, given on the last day of December Term, 1869, of this Court. Its solution depends upon what is the sound and correct construction of sections 4501, 4502 and 2878 of the Code. The intention of the Legislature is the thing which we must ascertain, and by which, when ascertained, the Court must be governed. To ascertain that intention, we must “take counsel of the past,” the “ then present and the future,” as these are the things by which the mind and judgment of wise and enlightened statesmen must be assumed, in the making of the law, to have been guided. The garnered experience of generations of legal sages, upon the subject of the construction of statutes has been reduced into a system of rules for the guidance of the court which may be called upon in any particular instance to ascertain the intention of the maker of the law. Of these rules, the most important are these, that the court is to take into consideration the “ words, the context, the effects, and consequences — the reason, or spirit of the law, and the cause or necessity of the act.” Among these, the primary rules are that the intention of the legislator is to be collected from the words he has used, and that his words are to be taken in the ordinary and familiar signification and import, unless they be technical terms, or terms of art, when they are understood in their settled technical sense, or in their sense in such art.

Submit the sections of the Code under consideration to the test of these rules. They are as follows : “ In all cases in which the Supreme Court may give judgment through' inadvertence and oversight, when upon the face of the record, no cause of action existed against the. party, the Court may, upon its own motion, vacate such judgment,” 4501. “ The Court may likewise, at any time, after final judgment, correct mistakes, apparent on the face of the record, as -provided in section 2878,”. 4502. “Every mistake apparent on the face of the record may be corrected by the Court at any time after final judgment, at the discretion of the Court,” 2878. The last of these sections is one of the sections in the chapters of the Code upon the subject of the “amendments; the other two sections are parts of the chapter in the Code upon the subject of the jurisdiction of the Supreme Court.” The first section of this chapter prescribe the number of the Judges of the Court, whose concurrence shall be necessary to every decision. The second declares that the Court has no original jurisdiction, but appeals and writs of error, or other proceedings for the correction of errors, lie from the inferior courts of law and equity, within each division, to the Supreme Court held for that division.” The third section provides that agreed cases may by consent of parties, be adjourned to the Supreme Court for trial. The fourth section confers upon the court power to commit or remand offenders. The fifth, to give judgment upon any and all bonds or recognizances, whether in civil or criminal cases, taken in the progress of the cause, in the Supreme or inferior Court, and to enforce the same by execution or otherwise; and the sixth, to issue process of scire facias in all such cases as is proper in similar cases in the inferior courts; and upon appearance of defendant and issue made, the right to order a jury to be summoned to try such issue. The seventh and eighth sections of this chapter are ss. 4501 and 4582, which have been above quoted. The ninth and last section of this chapter declares that the Court may issue all writs and process necessary for the exercise and enforcement of its jurisdiction. The jurisdiction of the Court is confined to appeal or writs of error, or, other proceedings for the correction of errors only, and all the other powers conferred . upon it;¡'unless the provisions of sections 4501'and 4502, constitute an exception; are such process as are necessary to carry out and make effectual its power to entertain and try appeals or writs of error, or other proceedings for the correction of errors.

Are “mistake” and “error” synonyms? If they are, then any inferior court may, at any time, after final judgment is given in such court, vacate such judgment, if “ error ” has intervened in the giving of the judgment;, and if, it can, there is no need for either an appeal or a writ of error. The power conferred by this section is a- power to make amendments. From the time of the passage of the first .statute of amendments in England up to the time 'of the enactment of this section, the power conferred upon the courts from time to time, in England, and in Tennessee, to make amendments, has been understood and acted upon by the courts as a power, for .the correction of “mistakes.” The same has been the understanding and course of action of the courts, as to the common law power of courts, to make amendments. There is another of the common law remedies by which the signi-. fication of the term “mistake” is recognized, and made a foundation for remedial justice. If a court of law gave a judgment against an infant, a feme ‘covert, or a lunatic, upon the assumption of such person being under no. disability, the aggrieved party was given Ms writ of error, eoram nolis, to vacate and annul such, improper judgment. It lay only to correct a mistake of fact. Tbe system of equitable procedure contains examples of remedies which, rests upon the same signification of the term mistake. Thus, if a decree be entered in Chancery, which, assuming the facts as found and stated in it to be correctly found and stated, is erroneous in point of law, such decree may be reviewed and reversed for error of law apparent upon its face; but if the decree be an improper one by reason of some fact or facts, which have been newly discovered, or which have come into existence in time after the original decree, the decree can only be set aside upon a bill of review, bringing forward and stating the new matter. Usage is the law by which the signification or import of words is fixed and settled, and the shades of difference in their meaning is marked and defined. Prom such usage for a long period iu statutes, and in the procedure of courts, the term mistake has come to mean a “ slip ” or a “ fault.” Thus, the expression is frequently used in our books that a demurrer reaches the first “fault” in pleading, or that a party has made a “ slip ” in some step in the suit. This long usage of the term “mistake,” has affixed to the word a different sense from the term “error,” of which it is not the synonym. The power to correct every mistake, at any time after final judgment, which is by sec. 2788, conferred upon any court, is not a power to reverse such judgment for error of law therein. 'It is only the power to correct any “slip” or “fault” which may have been’ committed in the course of the suit, at any stage of such suit from its beginning to its end. The power, in' other words, to amend any such “fault” or “slip.” No authority, then, is to be found in this section for the action which the Court is now invoked to take. That action is not to correct any “slip” or “fault,” i. e., any mistake committed in the course 'of the suit from the beginning to the end, but to vacate a final judgment of this Court. • -

To know what the common law was, before the making of a statute whereby it may be seen whether the statute be introductory of a new law, or only affirmative of the common law, is the very lock and key to set open the windows of the statute. “Further; statutes are to be construed in reference to the principles of the common -law. For it is not to be presumed that the legislature intended to make any innovation upon the common law, further than the case absolutely required. The law rather infers that the act did not intend to make any alteration, other than what is specified, and besides what has been plainly pronounced, for if the Parliament had had that design, it is naturally said, they would have expressed it.” It was observed by the judge in the case of Stowel v. Zonch, that it was good for the expositors of a statute to approach- as .near as they could to the reason of the common law. The best- interpretation of a statute, say other cases, is to construe it as near the rule and reason-of the common, law as may be, and by the course that law observes in other cases. Such indeed has been the language of the courts in every age, and when we consider the constant, vehement, and exalted' eulogy which the ancient sages bestowed upon the common law as “the perfection of reason/’ and “the best birthright and noblest inheritance of the subject,” we cannot be surprised at the great sanction given to this rule of construction, and its careful observance: Dwarris on Statutes (9 vol. Law Lib., p. 45.)

The act which this Court is, by sec. 4501, author-ised to do, is to vacate a final judgment given by itself. The state of things in which it is empowered so to do is “where the Supreme Court may give judgment through inadvertence and oversight, where, upon the face of the record, no cause of action existed against the party.” By the common law, when a Court had given judgment, and the term of the Court, at which the judgment was rendered, had passed, the Court had no power over it. The like rule prevailed in equity. "When a decree had. been made and enrolled, the Court had no power to alter or reverse it, except upon a bill of review for error of law, apparent ■ upon the face of the record, or for new matter. This section confers upon the Court power to vacate a final judgment, given by itself after the termination of the term at which it was rendered. This power is, however, not a general power over its judgments at a subsequent' term. It is a special power only, and extends to the cases alone, “when, upon the face of the record no cause of action existed against tlie party, and when the judgment was given against him “through , inadvertence and oversight.” This grant of power is to be construed as near to the rule and reason pf the common law as may be, and is not to ,be presumed as intended to make any innovation upon the common law, further than the case absolutely required; t,o make any alterations other than what is specified, and besides what is “plainly pronounced.” The “cause” or “necessity” for the act, the provisions of which were afterwards carried forward into the Code, as sec. 4501, was that the Supreme Court, through inadvertence or oversight, had failed to observe a fact which showed tllat there was no cause of action against a party, and through such inadvertence and oversight had given judgment against him, “when, upon the face of the record no cause of • action existed against him;” and the mischief against which the act intended to provide was that the term of the Court having passed, there was no remedy of course, for the wrong done by the rules of the common law and by -previous statutes, and the remedy provided was to prevent a like wrong in other cases. The “slip” in that case was that a writ of sci fa against bail had not been returned to the first term after the default of his principal, and by this “slip” the plaintiff had lost any right of action against the bail, against whom, of course, no .cause of action upon the record existed. The fact of the “slip” in the course of the suit was not, upon appeal in the ease to this Court, brought by counsel to the attention of the Court, and was not discovered by the Court, and through this inadvertence or oversight, judgment was given against the bail, against whom upon the face of the record no course of action “existed.” Now there is before our minds the “old law;,” the “mischief,” and the “remedy.” By the old law, the Court had, when it had given judgment, and the term had ended, no power over such judgment, the mischief was, that it had happened from the omission of counsel to dx-aw the Court’s attention to, and the Court’s failure to discover the fact of a “slip” or “fault” of a party in the course of an action in an inferior court, by which he was deprived of any cause of action against a defendant, and through such “inadvertence” and “oversight” the Court had given judgment, against defendant, when upon the face of the record no cause of action existed; and the remedy was to confer upon the Court, where like causes should occur in the future, to vacate the judgment upon its own motion. “Where a statute alters the common law, the meaning shall not be strained beyond the words, except in cases of public utility, when the end of the act appears to be larger than the enacting words.” Thei’e is in the enacting words of sec. 4501 nothing which indicates that the end of the statute was broader than the terms “inadvertence and oversight” express. In truth, these terms limit the jurisdiction of the .Court to vacate judgments rendered at a previous term, wben there is upon tbe face of tbe record no cause of action against, a party, to tbe cases in which such judgments were given through inadvertence and oversight. The Court is a court of errors as to the judgments and decree of inferior courts of law and equity in this State. It is not a court of errors as to its own judgments of a previous term. The legislature evinces its knowledge and recognition of this fact by conferring upon it the power, not to reverse its judgments of a previous term of the designated description, and' given through inadvertence and; oversight, but- to vacate such judgments. “No statute shall be construed in such a manner as to be inconvenient and against reason.” The power of the Court to reverse its own judgments of a former term would indeed be most inconvenient. If such power existed, there could never be any, final judgment of this Court, for if the Court could at one term reverse its judgment of a previous term, upon the idea that such judgment, being erroneous in point of law, had been given through inadvertence and oversight, the same thing could be done ■ upon the same ground at each successive term of the Court. Certainly it is always a matter to be deplored, when a judgment of a court of- last resort has been erroneously given. As long,, however, as mere men shall be called upon to pass upon and decide upon the rights of others, as Judges, there will be occa,- ' sional instances in which judgments, which are erroneous in point of law, will be given; for to err is human, and no court has ever been so learned, enlightened, and impartial as always to avoid the commission of error of law in some of its judgments. Already there has been one volume, at least, published of overruled eases, and if all the cases in England and America, which have been overruled in whole ' or in part, or modified or explained and limited, were collected, another volume would not be more than sufficient to contain their names.

From these views and considerations, it necessarily results that sec. 4501 confers upon this Court no power to reverse the judgment of last term, for error of law apparent upon its face, upon the idea that such judgment was rendered through inadvertence and oversight, when upon the face of the record no cause of action existed against the parties. In the broad sense of the terms, no cause of action, i. e., no right of recovery exists against any party, against whom a judgment, which is not in conformity to, and warranted by, the principles of law, is rendered. The judgment which is sought to be vacated, was given upon an agreed case, which is as follows: “In this case the parties agree upon the following statement of facts, upon which the controversy depends, and submit the same for trial and adjudication, to the Honorable Circuit Court of Franklin county, as if a suit had been brought by the plaintiff, and the facts herein admitted, fully proven. 1. It is agreed that on the 8tli clay of Marcli, 1861, defendants Colyar & Marks were attorneys and partners in the practice of law at "Winchester, Tennessee, anch that W. M. & J. D. Russell, partners in trade, on that day placed in the hands of defendants, as such attorneys, for collection, a bill of exchange for thirty-two hundred and fifty dollars; for which bill of exchange they executed a receipt, which is in the words and figures following: ‘Received, March 8th, 1861, of W. M. Russell and J. I). Russell, a bill of exchange for collection, drawn by II. II. Roberts, payable to A. M. Rutledge, and indorsed by him to H. S. Long, at ninety days, drawn 10th September, 1860, payable at Mobile; acceptance waived, but protested for non-payment, for thirty-two hundred and fifty dollars, which we will collect or account for — -Collected at three per cent. ColvaR & Makes.’

Indorsed to-wit, March 8, 1862: ‘I assign the within receipt to J. McKinney and L. Pointer, and also the judgment taken, for the consideration of thirty-two hundred and eighty-five dollars.
W. M. Russell.’
L. Pointer’s part, $2,106.80.
McKinney’s part, $1,142.40.

It is agreed that J. 13. Russell was dead at the time-of the assignment, and that the plaintiffs, Pointer and McKinney, were the owners of the claim or bill of exchange receipted for by defendants. It is agreed that the defendants, as attorneys, brought suit and obtained judgment in the Circuit Court of Franklin county against thiT^Jrarties to the bill of exchange, at the-term of the Franklin Circuit Court, 1861, and that defendants Colyar & Marks, as suck attorneys, in 1868, received in payment of said judgment, Confederate Treasury notes, and receipted the judgment in the name of the plaintiffs. It is agreed that no communication or instruction in regard to said bill of exchange occurred after the execution of the receipt of the 8th of March, 1861, between plaintiffs and defendants, until 1865, when the plaintiffs, Pointer and McKinney, called upon defendants, and asked the compliance with the contract contained in the receipt aforesaid, demanding current money, which defendants refused to pay, or to collect or account for said bill of exchange, otherwise than as above shown. It is agreed that the costs shall abide the decision in this cause. It is agreed that this cause shall be considered as a suit instituted from the filing of this agreement with the Clerk of Warren Circuit Court. It is agreed that the defendants, upon receiving the Confederate Treasury notes, not having any knowledge of the assignment, addressed a letter to W. M. & J. D. Russell, informing them of the facts, and that they were absent in the army, and did not receive, or reply to, their communication. It is agreed that Confederate Treasury notes was the principal circulating currency at the time the defendants received them in satisfaction of the judgment. It is agreed that after the rendition of the judgment of the Cir cuit Court of Eranklin county, at the March Term 1861, in the case of W. M. & J. D. Russell v. Roberts, Rutledge and Long, for the sum of three-thousand four hundred and sixty-nine dollars and twenty-five cents, the defendants, or one or some of them, went to the law office of Colyar & Marks, attorneys for the plaintiff in the judgment, and paid to them in Confederate Treasury notes, the amount of said judgment, and took their receipt therefor. A true copy of the record in said cause, is filed as evidence in this suit.”

Upon an appeal from the judgment of the Franklin Circuit Court, this Court, at its last Term, gave judgment upon the agreed case, against Colyar & Marks. The opinion of a majority of the Court was given by Judge McClain, who diss'ented from the two other Judges — but who, according to a rule adopted by the then incumbents of the ‘bench, delivered the opinion of the Court. The majority of the Court, whose opinion was so written and delivered by Judge McClain, decided that “ Colyar & Marks were estopped by their receipt' from denying that they received the amount of the judgment in legal funds, having receipted the judgment in fulb;” and in conformity to this decision of a majority of the Court, judgment was rendered against Colyar & Marks. That this judgment was an erroneous one, is conceded on all hands. The question is, however, whether the same was rendered through inadvertence and oversight, when upon the face of the record, no cause of action existed against the defendants.

The fact that the payment of the judgment was made to Colyar & Marks in Confederate Treasury notes, was expressly stated upon the record in the agreed case, and the fact of the majority of the Court having placed their decision upon the ground that Colyar & Marks had received payment of the judgment, and receipted the same in full, es-topped them to deny that they had received payment in legal currency, shows that their attention was drawn to the fact of the payment having been received in Confederate Treasury notes, and the dissent of the other member of the Court, evinces that his attention was drawn to the same thing. There was, then, no oversight by the Court of, or inadvertence to, the existence of the fact that the payment had been made to, and received by Colyar & Marks in Confederate Treasury notes. 'With this fact in the minds of a majority of the Court, as well as in that of the dissenting member, the Court rendered judgment against the defendants, upon the -ground of estoppel. That this was an erroneous application of the doctrine of estoppel, to the state of facts in the record, may be true, but that the judgment founded upon such erroneous application of the doctrine of estoppel, was a judgment given by the Court through inadvertence and oversight, within the purview of sec. 4501 of the Code, cannot, as we think, be correctly held, unless, indeed, we were prepared to hold that every erroneous judgment is a judgment rendered through inadvertence and oversight. For all that, in this respect, is in the case, is, that the majority of the Court erred in the application of the doctrine of. estoppel, to a known state of facts, to which it bad legally no application. The suggestion is made that the Court decided the case without being informed, or knowing of the existence of the decision of the Supreme Court of the Hnited States in the case of Thorington v. Smith, and therefore the judgment must be regarded as having been given through inadvertence and oversight of the true rule of law governing the case. Whenever the Court gives a judgment which is erroneous in point of law, such erroneous judgment is the result of oversight of some rule of law which governs the case, or of its inadvertence to the existence of some rule of law, or the application of it to the facts of the particular case. The further suggestion is made that as the judgment has not yet been collected by execution, such judgment is still within the power of the Court. The moment of the adjournment of the • last term of this Court its power over the judgment was at an end. The inclination of the Court is always, when it sees a wrong has been done, to redress such wrong, and in all cases in which this can be done without a disregard or violation of rule or principles of law, it will afford appropriate relief against the wrong. But a court must always be careful that its anxiety to give a remedy against a particular wrong, does not impel it to violate or disregard settled rules and principles of law. Much, therefore, as this Court may regret the wrong done to -the defendants, by the erroneous judgment of the last term of this Court against them, it is constrained by the settled rules and. principles of law to let that erroneous judgment stand, and to deny their application to vacate it.

Eseeman, L,

delivered the following opinion concurring.

This is an application to vacate a judgment entered in this Couid, at the last term, against Colyar & Marks, and to correct supposed mistakes apparent on the face of the record. The application is urged, under provisions of the Code, ss. 4501, 4502 and 2878.

The first of these sections is, that “In all cases in which the Supreme Court may give judgment through inadvertence and oversight, when upon the face of the record, no cause of action existed against the party, the Court may, -upon its own motion, vacate such judgment.”

The second section referred to is, that “ The Court may likewise at any time after final judgment, correct mistakes apparent on the face of the record, as provided in sec. 2878.

That section provides “ That every mistake apparent on the face of the record may be corrected by the Court at any time after final judgment, at the discretion of the Court.”

The case before the Court at last term was an agreed case, on which judgment has been rendered by the Court below in favor of Colyar & Marks, and appeal taken to this Court.

The facts were substantially, that said Colyar & Marks, as attorneys, bad given their receipt to "W. M. Eussell and J. D. Eussell, for the collection of a certain bill of exchange, for $3,200. They obtained a judgment on said bill.

In 1862, the receipt of Colyar & Marks, and the judgment obtained by them was assigned by W. M. Eussell, surviving partner, etc., to McKinney and Pointer, but Colyar & Marks had no notice of the assignment.

The two Eussells went into the Confederate army, and were in Virginia. In 1863, the defendants in the judgment paid to Colyar & Marks the amount of the judgment, in Confederate Treasury notes, and took Colyar & Marks’ receipt in full for the same. This was at "Winchester, Tennessee, and it was agreed, that at this time Confederate notes constituted the common currency. Colyar & Marks immediately wrote to the Eus-sells, who, as they supposed, had the receipt, informing them of the collection of the judgment in Confederate money, to which 'they made no reply.

In 1865, McKinney and Porter demanded of Colyar & Marks, the money on said judgment, in current funds, that is, in greenbacks, which was refused; whereupon this agreed ease was made, and submitted to the Circuit Judge, who held that the parties were not liable.

The grounds stated in this application as made to fis, are, that it appears from the opinion of the Court at the last term written by Judge McClain, that “ The majority of the Court hold (the writer of the opinion not concurring) that Colyar & Marks are estopped from denying that they received the full amount of the .judgment in legal funds, having receipted the judgment in full.” It is stated to have been the practice of our predecessors, that a Judge dissenting from the majority, should write the opinion of the Court, and that Judge McClain had a correct view of the facts, and from his statement of the views of the majority of the Court, it is insisted that they certainly were not aware of the facts of the case, as it appears, as part of the agreed facts of the case, that it was paid in Confederate money, so that the case did not in fact present a question of estoppel, nor depend upon a denial, of the receipt of the amount of the judgment in current funds. It was not even so claimed by the plaintiffs in the case, but admitted that .the contrary was the case.

It is insisted most ingeniously and earnestly in the brief submitted to us, that the facts presented show such a case of mistake and oversight as, tinder the sections of the Code referred, to, authorizes us to vacate the judgment, and correct the same.

*We need not examine the correctness or incorrectness of .the opinion of a majority of the Court, as it is so obviously incorrect as to be apparent to all, without reasoning or authority.

The question for our consideration, however, is not the correctness or incorrectness of the opinion then given — but whether the judgment given was rendered by that Court through inadvertence or-oversight, when upon the face of the record no cause of action existed -against the party.

We can see that no cause of action existed — but the rendition of this judgment by inadvertence and oversight, does not appear.

The following is the opinion of the Court at the last term:

“This case was presented to the Court below, without pleadings, upon an agreed state of facts, pursuant to the provisions of the Code on that subject.

The case presented is simply this:

A bill of exchange was placed by "W. M. and J. D. Russell in the hands of Colyar & Marks, as. attorneys, for collection, for which they executed their receipt. This receipt was transferred to the plaintiffs.

Colyar & Marks procured, judgment on this bill of exchange, and an appeal was taken to this Court.

Afterwards, and during the war, the defendants in the judgment paid to Colyar & Marks the amount of the judgment in Confederate money, and Colyar & Marks thereupon gave.the defendants in the judgment a receipt, showing payment of • the judgment. This suit is brought against Colyar & Marks to recover the amount of the judgment. There was judgment below in favor of Colyar & Marks, from which an appeal was taken by the plaintiffs to this Court.

The majority of the Court hold (the writer of this opinion not concurring) that Colyar & Marks are estopped from denying that they received the full amount of the judgment in legal funds, having receipted tlie judgment in full.

I am of the opinion that the right of the plaintiffs to recover is governed by the ordinary rule in such cases between principal and agent; that the extent of the principal’s right of recovery depends upon the amount of injury sustained.

The receipt of the Confederate money,, and the giving of a receipt showing payment of the judgment, is not a satisfaction of the judgment, and consequently they are not in my opinion entitled to recover against Colyar & Marks.

Proceeding to render the judgment here, which, in the opinion of the majority of the Court should have beeq rendered below, the defendants in error will have judgment for the amount of the judgment recovered on the. bill of exchange with interest and costs.”

The purpose of the statute was, that in cases where, from inadvertence, that is, the mind of the Court not being turned to the fact, or by an oversight, not having observed it, a wrong judgment had been rendered, and it should appear from the records of 'the Court that such was the case, a correction might be made. Now we cannot see that a majority of the Court failed to have their minds turned to the facts of the case, or, by-oversight, omitted to observe them. On the contrary, it would seem that as there was a dissenting view of it presented by Judge "McClain, and for that reason he was required to write the opinion, then it must bare been presented to the other members before he was directed to write it, and the fact that his dissent was based on the ""facts of the case that it is now insisted were overlooked, would seem to make this view of the matter conclusive. There was no oversight, or inadvertence, but only a very erroneous view of the application, and effect of a rule of law to those facts, as they were presented in the record. This we have no power to correct. It would involve the re-investigation by us, if the principle was adopted, of a large number of eases heretofore decided, and be productive of interminable mischief. So far from having been overlooked, the very facts of the case (that is the payment of the Confederate money to Colyar & ’ Marks, and their receipt for it) on .which we are asked to vacate the judgment, were discussed, are presented in the opinion, and their legal effect weighed, and different conclusions arrived at by two members of the Court on these questions, from those arrived at by the third. If this can be called inadvertence and oversight, then these words serve but to mislead us, as they, would be thus construed to mean the very opposite of all the ideas which they have before been understood to express. In other words, 1‘ inadvertence and oversight” would be, under this- statute, careful attention and weighing of the facts, said to be overlooked, or inadvertently passed by, only provided that an erroneous conclusion was arrived at.

It is insisted, however, that we must presume that this Court always decides correctly, when the facts are not overlooked, or that- whenever an error is clearly seen, that we must presume that it was the result of “inadvertence and oversight” — and, therefore, under these provisions of the Code, we would be bound to correct the error, by vacating the judgment. This would be a comfortable and somewhat flattering doctrine, if we could only believe it sound; but we confess that we are unable to bring ourselves fairly to a conclusion so favorable, either to our own infallibility, or even to that of our predecessors on this bench, commencing with its first organization, and coming down to the present time. "We see in our books of reports many cases, where, upon review of the deliberate opinions of the Court, when the same question was raised in other cases, the previous opinions have been overruled, and held not to have been decided correctly. Yet we may add in all these cases we have no report of a case in which these judgments, rendered in pursuance of these erroneous opinions, were ever vacated and set aside for this cause. The principle is axiomatic, one never questioned, that the general rule of law is, and has at all times been, that this Court could not vacate its judgments after the term at which they wore rendered, has expired. "We look at the statute, and we find a special exception to this rule provided by the legislature. It specifies the cases in which we may depart from this rule; what are they? In all cases in wbicb the Supreme Court may give judgment through inadvertence and oversight, when upon the face of the record no cause of action existed against the party, the Court may, upon its own motion, vacate such judgment. It might be plausibly maintained that this section only provides for the' action of the Court, upon its own motion, on discovering the erroneous judgment, and at the same term at which it was rendered, for the next section provides for the correction of mistakes, as provided for in sec. 2878, and that section provides for the correction of mistakes at any term after final judgment. This provision might have been unnecessary — but many statutes are passed giving remedies, when the common law was equally effective for the end.

But passing this by, and not insisting on it, we look at the statute for our power and authority in the particular case. What must appear? First, that the Supreme Court has given judgment through “inadvertence and oversight” — we must find the elements here laid down, before we look to the question of error at all. These are the only judgments we can vacate — such as are rendered or given through “inadvertence and oversight.” If we fail to find this to have been the case, we must stop at once. We have no authority or power in the premises; for in such case, the expression of one thing, would, by necessary implication, exclude the other.

The theory on which this relief is sought, however, goes on a mode of reasoning the opposite of this provision of the statute. It is, first, to find the judgment to be erroneous; when this error is found, to insist that this ascertains the other facts to exist; that is, that the judgment was given through “ oversight and inadvertence” — and then we must proceed to the correction. In a word, on any principle insisted on for the action of this Court in this case, we have but to decide that, from examination of the record, an erroneous judgment has been rendered, and then presume the “ inadvei'tence and oversight,” .and vacate the judgment.

It may well make us pause, when we look at the consequences of this view of the case, and of the establishment of such a rule. "Why may not every case decided in all the past history of this Court be reviewed by us? Would not the rule compel us to examine every record remaining on file in this Court, at the instance of counsel, in order to determine whether or not there was error in the judgment rendered; for, upon the establishment of the error, the relief must be given, as the “ oversight and inadvertence” are presumed? Where can we draw the limit to our action? Shall we say, only in hard cases, of manifest injustice ? . If so, how are we to decide upon the injustice of the judgment, without examination of the record, and comparison of the case therein made, with the judgment rendered ? In other words, we can see that instead of this Court being a court of appeals for hearing cases brought up from the inferior tribunals, it would, upon this theory, become practically but a Court for review of the opinions and judgments of our predecessors — and in turn, those who may come after us, would have to engage in the same character of investigation, and so this tribunal would be charged,- not only with decisions of cases here on appeal, but also the revision and correction of all the accumulations of past years. Such a conclusion is to us inevitable from the premises assumed, and would in its results be simply monstrous.

In looking at the facts before us.that induced the judgment, we mean the action -of the court ; we not only see no “inadvertence or oversight,” but the contrary most clearly appears. The fact that the payment was made is referred to, and discussed by the members of the Court, McClain, J., dissenting from the views of the other two, and holding, that the payment in Confederate money was no payment at all; that the judgment remained in full force, and as the money was not a payment, the defendants, as attorneys, had not received payment of the money due to complainants, nor was the judgment satisfied, and therefore they were not liable.

The other two Judges, however, held that the receipt given by the attorneys for the money, es-topped them, and the law presumed they had received the money. Estopped- them how ? we ask. It could only be, from saying that they had received Confederate or worthless money, or rather, from taking any benefit from this fact. Such seems to have been the reasoning of the majority of the Court.

Was not here a direct, deliberate attention given to' the very facts on which we are asked to vacate this judgment? Was not the effect of the payment in Confederate money discussed by the court, and their conclusion, however wrong the result, not of inadvertence, but of its opposite; not of oversight, but of a direct sight, so to speak, at the facts involved? If this is inadvertence or oversight, then we are at a loss to conceive of what can be their opposites.

As to the presumption insisted on, we can see clearly, that if we presume inadvertence and oversight, we certainly cannot be called on to presume it in the face of the truth of the case, and contrary to the facts as we find them in the record. We cannot but think such a presumption would, at any rate, be a disputable one; and if so, its refutation is clearly -found on the face of the record presented. In fact, this reasoning calls on us to hold that the judgment was rendered through inadvertence and oversight, when we see from the opinion of the court, that it is the very judgment ordered to be rendered by the majority of the court, with a clear understanding of what they had ordered. We may feel astonishment at their opinion, but certainly not at the judgment, as it is precisely the one authorized by that opinion.

This Court has said: “ There must of necessity be an end of litigation somewhere. To permit the judgments of the Courts to be opened again, and discussed as often as a real or imaginary error in the judgment of the Court, in point of law, or in conclusions of fact, might be discovered, would be intolerably vexatious. As to grievances and complaints of tbis sort, tbe judgments and decrees of tbis Court must necessarily be final:” Elliott v. Cochran, 1 Col., 393.

Tbe court s$y further in tbe above case, that, “ as to tbe errors in tbe judgment of tbe court, in point of law, existing in tbe decree on wbicb tbe report of tbe clerk is based, or in unwarranted deductions of fact, if any sucb there be,' tbey, upon tbe principles already stated in tbis opinion, are beyond our reach— tbe law of tbe decree, as well as its conclusions upon tbe testimony in the cause, constitute tbe deliberate judgment of tbis Court in tbe case, and cannot be changed:” Ibid, 395.

We do not cite tbis case as construing section 4501 of tbe Code, but as laying down a universally settled principle of our law, and one that ought to guide us in our construction of tbe language of tbe section of tbe Code referred to.

■ On looking at tbe Act of 1846, p. 211, pamphlet acts, tbe views expressed in tbis opinion, as to tbe construction of tbis section of tbe Code, are shown to be a correct exposition of tbe intent of tbe legislature. That act provides: “ That in all cases in wbicb the

Supreme Court may have given judgment, or may hereafter give judgment against any party, through inadvertence or oversight, when upon tbe face of the record no cause of action existed against said party, it shall be tbe duty of said Court at any subsequent term to vacate sucb judgment, etc. Provided, That if it shall be apparent in tbe record, that tbe original judgment was rendered through inadvertence or oversight, and against a party not liable to any judgment according to the law of the'land,” etc.

This enactment is transferred in substance into the section of the Code referred to, 4501 — and no more was intended than is specified in this act of 1846.

In the case presented to us, there is an erroneous conclusion as to the legal consequences of the facts of the case, and also as to the effect of a receipt, in connection with the other facts of the case; but these are not such errors as are the result of inadvertence or oversight; but as far as we can see, were the deliberate judgment of the Court upon the question presented.

It will be seen that the case provided for in sec. 4501 of the Code, is where a “judgment” is given “through inadvertence and oversight” — not where an opinion is formed from inadvertence and oversight. We could correct a judgment entered on the minutes, where we could see that the judgment was entered by inadvertence and oversight, but have no power to correct the opinions of this Court, after the term has expired at which the judgment is rendered.

We need hardly notice the provision of section 2878, as tliis ground is abandoned by counsel, that the Court may correct “ every mistake apparent on the face of the record at any term after final judgment, at the discretion of the Court.” The definition of the word mistake in its legal sense, as given by Mr. Story, Eq. Jur., vol. 1, § 110, is decisive of this aspect of the case, that “ it is some unintentional act, omission, or error, arising from ignorance, surprise, imposition, or misplaced confidence.” The judgment -of the court was in no sense a mistake under this definition; so far from being unintentional, it was the deliberate and purposed act of the court, done after an investigation of tlie case, based on wrong conclusions, as we think, both as to law and the facts; yet, nevertheless, their, conclusions as a court, and a final judgment on the matters presented for their decision, and must be held to conclude all further inquiry, as to the grounds of that judgment, with a view of revising or correcting the same.

We very much regret that we are compelled by the high demands of imperative duty, to dismiss the application of two gentlemen of the profession of such worth and -high character, and for whom we would willingly do anything that duty would permit; but it is better that even such men should bear this wrong, however unjustly, than that the law itself should suffer detriment, and its faithful administration be for a moment disregarded.

The petition is dismissed.

Sneed, J.,

delivered a dissenting opinion.

This is an application to vacate a judgment of this Court rendered at the last term in a case brought into this Court by an appeal in error from a judgment of the Circuit Court' of Warren county upon an agreed case. The application is founded upon the provisions of the Code which authorizes a correction of errors apparent in the record in judgments or decrees already rendered in this' Court, and the vacating of judgments in certain cases. The first provision is by section 2877, and is in the words following: “ The Circuit, Chancery and Supreme Court may, at any time, after final judgment or decree, and while the case is still in such courts, amend any clerical error, mistake in the calculation of interest, or other mistake or omission in the judgment or decree, when there is sufficient matter apparent on the record, the papers in the cause, or entries of a presiding Judge to amend by. By section 2878, it is provided that “ every mistake apparent on the face of the record may be corrected at any time after final judgment, at the discretion of the court.” And in the section next succeeding is the provision, “ In all the foregoing cases, if the cause has been finally disposed of, and the parties are therefore not before the court, the party seeking the correction shall give the adverse party ten days’ notice of his intention to move for a correction of the supposed mistake.” By section 4501, it is provided that in all cases in which the Supreme Court may give judgment through inadvertence or oversight, when upon the face of the record no cause of action existed against the party, the Court may, upon its motion, vacate such judgment. And by section 4502, it is said that the Court may likewise, at any time, after final judgment, correct mistakes apparent on the face of the record, as provided in section 2878.

The agreed case is as follows:

See it stated in full, ante page 164.

The judgment complained of was rendered at last term upon the following opinion delivered by Mr. Justice McClain, then one of the Judges of this Court:

See it set out, ante pages 167 to 170.

TJpon the foregoing opinion of the majority of the Court, delivered by Judge McClaiD, the judgment complained of in this case was rendered.

The judgment upon the facts of the case as against Colyar & Marks is manifestly an improper judgment, and the question recurs, has the Court, under these statutes, such a control over its own judgment as to vacate one which is discovered upon the record to do an injustice and a wrong. The opinion which controverts this prerogative of the Court is founded upon the authority of Elliot v. Cochran, 1 Col., 389. TJpon a careful reading of the opinion of the court in that case, it will be found that the question in judgment in this ease was not before the court. The question in that case was not whether this Court had the power to vacate an entire judgment, but whether it could “ correct a mistake ” apparent upon the face of the record. The mistake proposed to be corrected arose upon a re-statement of the account taken by the master in that case, and was apparent on inspection of the original and final -decrees in the cause, and it is thus stated in Judge Wright’s opinion: “ He (the Master) not only, omitted to calculate interest at annual rests upon the hire of the slaves, but failed to charge the interest altogether, save for one year on each annual hire, the result of which was, that the balance, instead' of being in favor of the complainants, was against them to the amount of $198.60. It does not appear that this omission as to the interest, and its mode of calculation, was known to the parties, or their counsel, until after the adjournment of the term of the Court, at which the final decree was rendered; and we are satisfied • it was not. The mistake was apparent on inspection of the original and final decrees and the report, and was obviously made by the Clerk in stating the account, and escaped the detection of this Court in rendering the final decree.”

In that case of Elliot v. Cochran, the court expressly say that the case now before us, having originated anterior to the Code, must be decided upon the law as it then existed, and that the correction insisted upon is allowable both by the Act of 1856, c. 70, and the common law. And it is upon the provisions of the Act of 1856 that the case was decided. The provision of that act, is, that the Court shall hereafter have power to correct all mistakes apparent upon the face of the record at any term after final judgment, said power to be exercised at the discretion of the Court. This provision was carried into the Code, and is to be found in sec. 2878. And it is clear that the question as to the power of the Court to vacate its judgments, as provided in see. 4501, was not before the Court in that case — nor was the interpretation of said section involved or considered in that case. It may be observed that there is a broad distinction between the vacating a judgment when upon the face of the record no cause of action existed against the party as contemplated in the section last referred to — and the mere correction of a mistake apparent on the face of the record, as contemplated in the Act of 1856, c. 70, and in sec. 2878 of the Code. Indeed this distinction is made prominent by the express words of the section which immediately follow that which provides for the vacating of improper judgments, which is in these words, “the Court may likewise at any time after final judgment correct mistakes apparent on the face of the record, as provided in sec. 2878.” It is apparent then, that ' it was intended by sec. 4561 to make a grave and important innovation upon the long established doctrines of the common law in regard to the powers of a court of record over its own judgments. At common law the power of this Court over its records was limited for the most part to its annual terms, and to the correction of mere clerical misprisions which were apparent upon them. A cause might be re-heard at the same term, and an improper judgment or decree corrected. The argument ab inconvenienti of the Court in Elliot v. Cochran, in stating these principles of the common’ law, has much force as applicable to the common law rules — but the spirit of our legislation has been to break down . all barriers that stand in the way to complete justice, and never to allow the considerations of the mere convenience of a Court to give sanction to the perpetration of a judicial wrong. This Court held, even before the Act of 1856, c. 70, that a clerical mistake in a judgment might be corrected at a term subsequent to that at which the judgment was rendered: 1 Hum., 379. And in Ridgeway v. Ward, 4 Hum., 430, it was held that clerical errors may be corrected by the Court at a subsequent term, but cannot be corrected from the memory of the Judge, or from written evidence filed in the cause, but must be corrected by proceedings of record. But these cases had reference to errors and mistakes merely clerical. The first innovation then made by the Code upon these doctrines of the common law was by sec. 2877, which gives the Court the power to correct not only clerical errors, but mistakes or omissions in the judgment or decree itself, where there is sufficient matter apparent on the record, the papers in the cause, or entries of a Judge, to amend by. But this relief was confined to applications made within twelve months after final judgment or decree. The next provision was for the correction of “every mistake” apparent on the face of the record at any term after final judgment at the discretion of the Court. The next step was to give the Court the power, without reference to the time of the decree or judgment, in all cases in which the Court has rendered a judgment through inadvertence or oversight, when upon the face of the record no cause of action exists against the party, to vacate such judgment on its own motion, 4501.

Now, what is the obvious and pervading object of this enactment? It was to correct a wrong and injustice done under judicial authority, when it was apparent that no cause of action exists against the party complaining, which justifies the judgment of the Court. 'What is it that the law authorizes to be vacated? It is not a mere clerical error, the result of inadvertence, but it is the solemn judgment of the court — the result of its deliberation upon the facts of the ease. It is the error the court has made in adjudicating upon the rights of the parties. An error of judgment. The result of oversight or inadvertence. . Noes this statute mean an inadvertence to facts, or an inadvertence as to the law of the case? Where are we to Toole for the evidence of such inadvertence? We are to look to the face of the record. If it appears there that no cause of action existed against the party — that a great wrong has been done to him— then it results that there must have been either oversight as to the matter of fact, or inadvertence as to the matter of law. It may be observed, that the use of these two words have a special significance in ascertaining tlie sense of this statute. They are not synonyms tbe one of tire other. The word oversight means the casual overlooking of something that should have been seen. In the statute it means that some important fact has been overlooked by the Court in making up its judgment. The word inadvertence means something more than oversight. The word inadvertence is defined to be “heedlessness/’ a “mistake or fault which proceeds from negligence of thought/’ Where are we to look for the evidences of this heedlessness — this mistake proceeding from negligence of thought, but in the record itself? If we find there that injustice has been' done — that the Court has done itself as well as the citizen a grievous wrong by violating his legal rights — then we have the case of inadvertence contemplated in the statute; and it is not the less so because the proceeding is the result of the deliberate judgment of the Court. And it was this very evil the legislature intended to remedy, when it made these gradual and progressive innovations upon the ancient doctrine of the common law; that there was a mystic sanctity about a judicial record that could not be violated, no matter how deadly the wrong which had been done to the citizen.

The observations of the court in Elliot v. Cochran, as to the value of those doctrines of the common law, have no application to the changes made by the statute, and are not pertinent in considering its proper interpretation. “As to the errors in. tbe judgment of the court in point of law,” says the court in that case, “existing in the decree upon which the report is based, or. in unwarranted deductions of fact, complained of, they, upon the principles already stated in this opinion, are beyond our reach — the 'law of the decree, as well as its conclusions upon the testimony in the cause constitute the deliberate judgment of this case, and cannot now be changed. They do not stand upon the same ground as the clerical error, or omission of the clerk: 1 Col., 395. But in considering these observations of the judge, who delivered the opinion, we must remember to confine them to the case then in judgment, and to the law, as it then existed, and which he was then expounding. By the present law, the conclusions of the court as embodied in its judgment or decree, however solemnly or deliberately made, are not conclusive of the rights of the parties; they are not so consecrated that they must stand as a perpetual monument of error, injustice and folly; but if it appear that no cause of action existed against the party at the time of the judgment — the mandate of the law is, that however irksome or inconvenient to the Court the proceeding may be —the judgment shall be annulled, and justice shall be done.

Now, the case in judgment affords the very best possible vindication of the wisdom of this statute, and the aptest illustration also of its practical operation. It is acknowledged on all hands that in truth and in fact no cause of action justifying this judgment exists in this record agaiust these defendants. It is so solemnly announced in the opinion of the court, delivered by the dissenting judge, and to fix an unjust demand upon these defendants, resort must be had to the technical doctrine of estoppel, which, with 'the greatest respect for the learning of the court, I must be permitted to say has been totally perverted and misapplied in this case. The majority of the Court holds that the defendants are estopped from asserting that the payment of the debt was in Confederate money, because their receipt imports good money. Now, an estoppel cannot be better defined than as it is defined briefly in Stephen on PL, 239: “A preclusion in law, which prevents a man from alleging or denying a previous fact, in consequence of his own previous act, allegation or denial of a contrary tenor.” In Gould on PL, it is said to be “a plea which neither admits nor denies the facts alleged by the plaintiff, but denies his right to allege them.” Thus it is said, “when a fact has been admitted or asserted for the purpose of influencing the conduct of, or deriving a benefit from another, so that it cannot be denied without a breach of good faith, the law enforces the rule of good morals as a rule of policy, and precludes the party from repudiating his representations, or denying the truth of his admissions,” 5 Ohio, 199; Bawle, Cov., 407. And so, says Mr. Stephen, this doctrine of law gives rise to a kind of pleading that is neither by way of traverse, nor confession and avoidance, viz.: a pleading that, waiving any question of fact, relies merely on the estoppel, and after stating the previous act, allegation or denial of the opposite party, prays judgment, if he shall be received or admitted to aver contrary to what he before did or said. The pleading is called a pleading by way of estoppel: Steph. Pl., 290. It is said that es-toppels are odious in the law, and in equity they are never allowed to prevail - against the “ truth of the case.” The doctrine imports that one party would affirm a right or assert a fact that the other party says he shall not be permitted to affirm or assert, because he has already made some admission or done some act by which the law precludes him from asserting to the contrary. A receipt for money or property is not conclusive as to the character of funds or property, or the terms or conditions of the payment, but, unlike most writings, a receipt may be explained and interpreted by parol. As matter of law, then, an estoppel cannot be predicated of a writing of that kind. But however this may be, there is one view of this question of estoppel that is conclusive. It is, that so far from the plaintiffs pleading or relying upon an estoppel, or objecting to the defendants showing that the payment was in Confederate money, he has by his agreed ease solemnly admitted the fact that the payment was in Confederate money, and the very question submitted by tbe plaintiff and tbe defendant for tbe determination of tbe Court was, whether, this payment in Confederate money made under all the circumstances, and received by defendants as attorneys, could create a liability against the defendants as tbe agents of tbe plaintiff'. Now agreed cases are to be determined upon tbe, facts agreed upon by tbe parties: 6 Yer., 490. The Court can raise no inferences of law of its own volition, except as they arise upon tbe facts agreed on. Thus, it is said, that “when a case is submitted upon an agreed statement of facts, the Court is bound to decide upon tbe facts as presented in- tbe record, and they can make no inferences unless of law, or undeniable consequences resulting from tbe facts agreed on. Vansant v. Roberts, 8 Md. R., 119; Van Brunt v. Pike, 4 Gill, 270; Wright v. Wright, 2 Md. R., 430. These inferences of law must spring out of tbe facts in tbe record, and must not rest upon hypotheses. How, then, can the doctrine of estoppel apply to this case, when tbe plaintiff has admitted tbe very fact which tbe Court says tbe defendant is estopped from affirming, and has also solemnly invoked the judgment of tbe Court upon tbe effect of tbe facts thus admitted?

We are utterly unable to account for this extraordinary judgment of a very learned Court, except upon one hypothesis. There is positively no cause of action in this record against ■ these defendants, which justifies this particular judgment, and this is conceded. We are constrained to believe that a majority of the Court have overlooked the fact that the plaintiffs have admitted the character of this payment, and are expressly permitting the defendants to show it — and that through this inadvertence, they have rendered this judgment on a misapprehension of the facts, and upon the technical doctrine of es-toppel. ¥e cannot assent to the theory that our present liberal laws will tolerate such a reproach upon public justice — such a grievous wrong to the Court itself as well as to the citizen — as to permit this judgment to stand. "We hold that the dissenting opinion of Mr. Justice McClain, in the first proposition of law announced in his opinion, declares tfie true doctrine upon which this case is to be determined, and that there can be no recovery against these defendants, except upon the principles of law governing the relation of principal and agent. The contrary view, it seems to me, would render this beneficent statute fruitless and nugatory as a remedy for the evils it was intended to correct. The case must be a very clear one, however, that would authorize this Court to exercise the powers conferred by this statute; and it should be done with extreme caution, and always with due reference to the perils which would be inseparable from a loose construction. But rare as “ proper cases” under this statute may 'be, we hold this to be one of such palpable injustice appearing in the record, and based, as we believe, upon inadvertence as to the real facts of the case, that we have no hesitation' in pronouncing it a proper case for the exercise of this statutory power. "We are not aware that this statute has ever come before this Court for interpretation; and we presume that no practice has been established for the government of the Court in cases which fall under it. This Court, however, has authority to prescribe its own rules of practice. But without laying down any general rule, we would hold this case to be one in which a re-argument here might be proper, that the rights of these parties might be settled according to the principles of law arising upon the state of facts agreed on.

It cannot be that under the terms of the statute, which are at once liberal and comprehensive, a judgment is to be permitted to stand, which ■ does a palpable wrong to the citizen, as admitted by the Court which pronounced it, merely because it would incommode a court of justice to open its records in order that a blemish of injustice may be obliterated from them. I hold that the Court owes it to itself, as well as to the citizen, that such a judgment should be vacated, whether the error was occasioned by “oversight” of a material fact, or “inadvertence” as to a principle of statutory or common law which controlled and vindicated the right of the citizen, and of which this judgment has deprived him. Thus believing, I am of opinion that this judgment should be vacated, and that the parties should be permitted to re-argue the case, and have it determined upon the plain and obvious principles of law which govern it.

NelsoN,-J.,

concurred with.

Siíeed, J., saying:

This case has been so fully discussed in the opinions which have been read, that I do not deem it proper to say any thing more than that I fully concur in the foregoing dissenting opinion of Judge Sneed.  