
    John D. Ashmore vs. Israel Charles and others.
    
      Practice — Amendment of Becord.
    
    Where the Clerk in assessing the plaintiff’s damages over-calculates the amount of interest, the plaintiff may, without notice or rule, obtain leave to enter a remittitur for the excess, or may himself, and without an order, enter such remittitwr on the judgment and execution.
    BEFORE MUNRO, J., AT GREENVILLE, FALL TERM, 1866.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ In this case a motion was made at chambers 31 August, 1866, for a rule against plaintiff requiring him to show cause at the next term of the Court of Common Pleas for Greenville District, why the judgment and execution should not be set aside as being in excess of the true amount due. On hearing the motion I was satisfied that the excess arose from a miscalculation of interest by the Clerk, and I thereupon granted an order, on motion of the plaintiff that defendants be required to show cause at the next term of the Court of Greenville, why the plaintiff should.not have leave to enter a remittitur for the excess, and amend his judgment so as to make it for the true amount due, and meanwhile that the judgment and execution be stayed.
    “ At this term the plaintiff brought up his rule, and defendant objected to its consideration, upon the ground that under the Act of 21st September, 1866, the rule being a process of the Court in a cause of action arising ex contractu could not be heard, but was postponed until Spring Term of 1867. I considered the matter to be within my jurisdiction, and granted the following order:
    “On hearing the rule and argument of counsel in this case, it is ordered, on motion of J. P. Reed, plaintiff’s attorney, that plaintiff have leave to enter a remittitur of the excess of the recovery as mentioned in the judgment and execution in this case, arising from an error in the calculation of interest by the Clerk on reference, and to amend his said judgment and execution by inserting the true amount, as ascertained to be due by defendants to plaintiff.”
    The defendants appealed, and now moved this Court to vacate the order for leave to enter a remittitur, upon the grounds, viz.:
    1. Because the rule to show cause why such leaye should not be granted, &c., though returnable upon its face to the present term, is by the Act of the Legislature of 21st September, 1866, made returnable to Spring Term, 1867, and was therefore improperly heard and considered by the presiding Judge.
    2. Because the rule being a process of the Court in a cause of action arising ex contractu, the presiding Judge, according to said Act, had no jurisdiction in the premises at the present term, and no authority to consider the case or to grant the order.
    8. Because the plaintiff is not entitled in law to the leave to enter the remittitur, &c., granted by the presiding Judge.
    
      Mford, for appellants.
    
      Heed, contra.
   The opinion of the Court was delivered by

Inglis, J.

The error in the judgment, arising from the Clerk’s over-calculation of interest in assessing damages, might have been corrected by amendment, on the plaintiff’s motion, in open Court, at any time, without rule, or other notice to the defendants. In The Bank of Pennsylvania vs. Condy, 1 Hill, 209, a mistake in the judgment and execution precisely similar to this, even where it arose from an over-calculation of interest made by the jury in estimating damages, was corrected by amendment from the copy of the note sued on, and the allegations of the declaration in reference thereto. In Patton vs. Massey, 2 Hill, 475, an error in the judgment and execution arising from a mistake of an opposite character, made by the Clerk, in his assessment, 'making the sum less than the true amount appearing from the previous part of the record to be due, was rectified by amendment. The Court say, in that case: This is one of those mistakes, in the discharge of a mere ministerial duty, which is amendable, according to the established usage of the Court,” and “it is inherent in the power of any Court to correct the errors of its ministerial agents, so as to subserve the ends of justice.” And see also Hubbell vs. Fogartie and wife, 1 Hill, 167. It is true, in these cases, the amendments were made upon the return of rules; but that was because the object was to conclude an unwilling party against whose interest the amendment was. And the rules were apparently taken out and returned during the term. But in Giles vs. Pratt, 1 Hill, 239, it was expressly decided that the plaintiff could amend his execution on motion,-as of course, and without a rule or notice to the defendant in execution; and it was there said that the judgment might be also so amended. And see. O’Driscoll vs. McBurney, 2 N. & M. 58.

But, further, the plaintiff, himself, might have cured the Clerk’s mistake by entering on the record a remittitur of the excess of the assessment over the true amount due as appearing from the face of the previous record; for he could therein be only doing what he would have been compelled by the Court to do on a proceeding at tbe defendant’s instance 'against bim for this purpose.

As tbe rule upon tbe defendants was unnecessary, tbe case must be regarded as if no sucb rule bad issued, and tbe plaintiff bad merely moved in term for leave to enter tbe remittitur and to amend bis judgment. So regarded, there is no ground for tbe appellants’ objection. Tbe motion is dismissed.

Dunkin, C. J., and Wardlaw, A. J., concurred.

Motion dismissed.  