
    Gordon v. Frazier & Gosbie.
    October Term, 1795.
    Clerical Errors — Amendment—notion—Writ of Error Coram Nobis.  — The Clerk having' entered up a judgment by nil dicit. in the District Court, in debt on a bond for the payment of tobacco, without noticing a memorandum endorsed on the bond, this Court considered the mistake to be merely clerical and amendable upon motion, at a subsequent Term. But the injured party may if lie please, proceed "by writ of error coram nobis; although this latter case, lie is not entitled to costs.
    Writ of Error Coram Nobis Plea in Nullo Est Erratum. —If the defendant in a writ of error coram nobis, plead in nullo est erratum, and conclude to the Court, the trial must be by the court.
    Judgment — Error in — Correction.—An error in the judgment of a Court can never be corrected by the same Court.
    The case was. The appellees brought an action of debt against the appellant in the District Court of Northumberland, upon a penal bill for the payment of 73,0001bs of sound merchantable tobacco, inspected in the year 1780, at Falmouth, Fredericks-burg, or Port Royal. A memorandum was endorsed *on the bill, signed by the appellees, in the following words, viz: “Tobacco passed at Hobs-hole inspection will be received in discharge of the above bond; tobacco passed at any time within the twelve months on these warehouses to be taken.” (Signed by the obli-gees. )
    A conditional judgment being entered against the appellant and his appearance bail, the latter, set it aside and pleaded payment. At a subsequent term, the appellant withdrew the plea, and judgment by nil dicit was entered by the clerk, for the payment of t&bacco generally, with a stay of execution, but without specifying the particular warehouses, and without giving credit for sundry payments endorsed on the bill.
    The appellees at a subsequent term, petitioned the same court for a writ of error co-ram vobis, and made an assignment of errors stating “that the clerk had entered up the judgment for payment of tobacco generally, whereas it ought to have been for 73,0001bs of sound merchantable tobacco of the inspection of 1780, at Fredericksburg, Fal-mouth, or Port Royal warehouses.”
    The appellant pleaded in nullo est erratum, and concluded with praying the court to proceed to examine as well the record and process aforesaid, as the matters aforesaid assigned for error, and that the judgment might be affirmed.
    To this plea, there was a general replication.
    The Court having inspected the record and proceedings, as also the original bill penal and indorsements thereon, and the original entry' of the confession of judgment, reversed the same with costs, it not being rendered pursuant to the tenor of the penal bill, and the discounts endorsed thereon not being allowed. The court then proceeded to give judgment, for the penalty of the bond to be discharged by the payment of 48,9271bs of sound merchantable tobacco, passed at the Fredericksburg, Fal-mouth and Port Royal warehouses, with interest and costs &c.
    From this judgment Gordon appealed.
    Washington for the appellant.
    Writs of error coram vobis are unusual in this country, but they are certainly useful, and the rules respecting them in England are not difficult to understand. They lie to correct misprisions of the clerk, and errors in fact, or in the process and proceedings. But if the error be in the judgment of the court, it can only be corrected by a superior tribunal. So if the error be in fact, it can be tried only by a jury. 2 Lev. 38 — 2 Bac. Ab. 21S, in the cases there cited. I object therefore in the first place, that the trial was by the court upon inspection of the record, and not by a jury. '*The withdrawing of the plea, and the entry of the judgment generally, might have been done in consequence of an agreement variant from the tenor of the bill, and therefore it involved a fact properly triable by a jury.
    But I rely principally, that the judgment which is given to correct a former one, is itself erroneous for the same reason that the former is alleged to have been so.
    It will not be questioned I presume, but that the memorandum endorsed on the bill, is as much a part of the obligation, as if it had been inserted in the body of the instrument itself; of course, the payment might be made of tobacco at Hobs-hole as well as at the other three warehouses. If the court then were right in correcting the former judgment, so as to make it conform to the tenor of the bill, they were wrong in omitting the Hobs-hole inspection, since by doing so, the tenor of the obligation was not pursued; so that at all events the judgment must be reversed.
    Warden for the appellee.
    The error in this case is obviously clerical. The judgment is confessed generally, (as the record proves,) and the entering it up is the business of the clerk, who having the bond for a guide, ought to have pursued the tenor of it. The variance from it, is certainly his mistake and not that of the court, as we all know, that the proceedings in a cause are never examined by the court that the time when the orders are read and signed by the judge.
    It is contended that the trial ought to have been by jury. To this there are two answers; 1st, that the error appears obviously from the record to be clerical, and therefore there could be no fact for the jury to try. And 2dly, the plea in nullo est erratum confessed the fact, and therefore it was unnecessary to try it.
    As to the objection stated to the last judgment, it is not easy for this court to decide that it is error. For it is impossible to say, whether the memorandum was made at the time the bill was executed or not, or by whom it was made.
    Wickham on the same side.
    I admit, that if the error assigned be a matter of fact dehors the record, it is triable only by a jury. But in such a case the parties must by their pleadings put the fact in issue For if the defendant in error instead of traversing the fact, tenders an issue in law, denying that there is error, he necessarily admits the facts alledged in the assignment to be true, as certainly, as a demurrer does in common cases admit the truth of the allegations on the other side. Thus *if the error assigned be that the defendant was an infant and appeared by attorney, the opposite party may traverse the fact of infancy and have it tried by a jury; or he may admit the fact, and deny that it is error, and this is done by pleading in nullo est erratum. So that upon the pleadings in the cause, the court, and not the jury were to decide the point in issue. But the truth is, that the error was merely clerical, and appears to be so upon the face of the record, and therefore it was properly amendable by the court upon inspection. The act of Assembly (Rey. Laws p. 118, g 21,) has prescribed the mode in which the clerk is to enter up judgments in actions on bonds; that is to say, for the penalty, to be discharged by payment of the principal, interest and costs. The confession in this case was general, but the clerk has omitted to enter up the judgment according to the rule above mentioned.
    I am inclined to think that the court were right in not noticing the memorandum. It does not appear how, or when it was made. Besides, the obligors lost the election which it gave him of paying tobacco of the Hobs-hole inspection, by his not having made the payment within the twelve months.
    Washington in reply.
    I admit that if the error stated had been one which was properly assignable, the plea would have confessed it. But if otherwise, the plea is considered as a demurrer Cro. Ja. 12. 29. 521. Raym. 231. Cro. Car. 421. But error in the judgment of the court, as I observe in opening the cause, is not assignable, nor can it be corrected by the same court.
    The plea therefore confesses nothing. The error here is in the judgment of the court. The words are “therefore it is considered by the court that the plaintiff recover against the defendant,” &c. &c. This is called the mistake of the clerk. It may be so, but it may not be so. The record states it as the mistake of the court, and there are no facts appearing to induce a different conclusion.
    But I rely principally upon the other objection. The. memorandum is signed by the obligees, and the bond continues in their possession. No question can exist but that a memorandum indorsed upon a deed is considered as a part of the deed, and consequently, if the amendment were properly made upon an inspection of the bond, it should have been wholly pursued, or not at all. The election given to the obligors by the memorandum is not restrained as to the time of payment, but the age of the tobacco after inspection. Mr. Wickham’s argument upon *this point is therefore founded upon a mistaken construction of the memorandum.
    
      
       Clerical Errors — Amendment—notion.—As to what is a clerical error, amendable on motion in the court below, see the principal case cited in Bent v. Patten, 1 Rand. 29, 32, 33. On page 36 of the same case the court said: "Those only are clerical errors which are made by the clerk, which depend only upon a comparison and calculation to be made by him, and may be safely reformed by reference to other statements contained in the proceedings. That was the case, in. Gordon n. Frazier and Gosbie. even in relation to the endorsements as to the Hobbshole tobacco.”
      See monographic note on "Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
      In Com. v. Winstons, 5 Rand. 567, the court said: “The principle which I extract from the British decisions, and from Gordon n. Frazier, is that which, in its origin, was a mere misprision of the clerk, does not cease to be so, merely because the entry has been read in court, and signed by the judge; and that it will be amended as ,the misprision of the clerk, provided there is anything in the record, by which it may be safely amended.”
      Same — Amendment at Subsequent Term. — In Gordon n. Frazier, 2 Wash. 130, a judgment entered on the order book of one of the old district courts, and signed by the presiding judge, was amended by the sam.e court at a subsequent term, and the amendment sanctioned by the court of appeals, on the ground that it was a misprision of the clerk, and that there was something to amend by.
      In Com. v. Winstons, 5 Rand. 557,565,566. 567, Judges Green and Cabell followed this decision in preference to the decision in Vaughan v. Preeland in a note, 2 Hen. & M. 477; Cogbill v. Cogbill, 2 Hen. & M. 467; Halley v. Baird, 1 Hen. & M. 25. Both of the above named judges were of opinion that Vaughan v. Preeland was in conflict with the decision in the principal case, but they considered the latter the better authority. Judge Cabell, however, was of opinion thatHalley v. Baird also conflicted with the decision in the principal case; he said on page 566; “I feel myself at liberty to choose between the conflicting decisions of Gordon v. Frazier, on the one hand, and Vaughan & Field v. Freeland, and Halley v. Baird, on the other: and I am constrained, by the best considerations I can give the subject, to prefer the authority of Gordon v. Frazier."
      
      The principal case is cited in Wrenn v. Thompson, 4Munf. 380. See foot-note to Price v. Com., 33 Gratt. 820.
      It was held in Halley v. Baird. 1 Hen. & M. 25, following Vaughan v. Freeland, that the district court” had no power to reverse, alter or amend the judgment given at a former term of the said court, which had been entered on the order book, and signed by the judge in open court. Both cases are in direct conflict with the principal case.
    
    
      
       Writ oi Error Coram Nobis — When It Lies. — A writ of error coram nobis lies where some defect is alleged in the process or the execution thereof, or some misprision of the clerk, or some error in the proceedings arising from a fact not appearing on their face, as where judgment is rendered against aparty after his death, or who is an infant or feme covert. Richardson v. Jones, 12 Gratt. 55, citing Gordon n. Frazier, 2 Wash. 130; Bent v. Patten, 1 Rand. 25; Tidd’s, P. F. 513.
      The principal case is cited with approval in Mc-Kinsey v. Harding. 16 Fed. Cas. 226.
      Same — Superseded by notion. — Mere motion to the court of error has superseded in practice the writ ofc,error coram nobis. In support of this statement, see the principal case cited in Fawkes v. Davison, 8 Leigh 560; Goolsby v. St. John, 25 Gratt. 157; Shu-ford v. Cain, 22Fed. Cas.,p. 49; 4 Min. Insts. (3d Ed.) p. 1055.
      Thus, in a note to Alston v. Munford, 1 Fed. Cas.,, page 581, it is said that where the object is to correct clerical misprisions, the writ of error coram, nobis (or coram nobis) has been superseded by the practice of giving notice to the adverse party, and. amending upon motion; they cite 1 Rev. Code, 1819, p. 508, sec. 77,1 Rev. Code, p. 512, sec. 88; Cogbill v. Cogbill, 2 Hen. & M. 477; Halley v. Baird, 1 Hen. & M. 25: Beatty v. Smith, 5Munf. 41; Bent v. Patten, 1 Rand. 25; Burch v. White, 3 Rand. 104; Com. v. Winstons, 5 Rand. 546; Christian v. Miller 3 Leigh 78.
      See Va. Code 1887, ch. 169, sec. 3447; W. Va. Code, ch. 134, sec. 1. p. 896.
      Bonds — Endorsement on — When Part of Bond. — The general rule is well settled, that a memorandum endorsed on a bond at the time of its execution, operating in favor of the obligor and rigned by the obligee, is to be considered as part of the condition of the bond. The principal case is cited with approval, to support this proposition in Smith v. Spiller, 10 Gratt. 323; Peyton v. Harman, 22 Gratt. 645; Price v. Kyle, 9 Gratt. 249.251; Stone v. Hansbrough, 5 Leigh 424, 425; Smith v. Nicholas. & Leigh 356. The principal case is distinguished in Eib v. Pindall, 5 Leigh 117; Carter v. Noland, 86 Va. 571, 10 S. E. Rep. 605; Calwell v. Caperton, 27 W. Va. 412, 415. 417.
      See foot-note to Price v. Kyle, 9 Gratt. 248. and Smith v. Spiller, 10 Gratt. 318. The principal case is further cited with approval in Argenbright v. Campbell, 3 Hen. & M. 175.
    
   CARRINGTON, J.

This case tho’ depending upon a practice not common in this country is by no means a difficult one. ■ I have no doubt but that the error complained of might have been corrected by the same court upon motion, at a subsequent term; but I should not for that reason reverse the judgment, since the party having preferred a writ of error coram vobis had a right to proceed in that way, tho’ a shorter, qnd much less expensive mode might have been pursued.

The plea of the defendant concluding to the court and resting the defence upon the law of the case, is a compleat answer to the objection made to the mode of trial. The error in this case appears on the face of the record to be merely clerical, and consequently, the court had a right to amend it. But in correcting two errors, there are three committed.

1st, The election given to the obligor by the endorsement (which is clearly to be considered as part of the bond,) of paying tobacco of the Hobs-hole inspection is omitted, as also the age of the tobacco as specified in the memorandum.

2dly, There is an error in the calculation of the balance due, after discounting the payments endorsed on the bond.

3dly, In awarding costs to the appellees. Eor as the error was merely in the officer of the court, which the injured party might have corrected upon motion, it is unjust that because the plaintiff in error chose to pursue this method, the defendant should be burthened with the payment of the costs.

LYONS, J.

-The only difficulty which I was under from the beginning, was whether a writ of error coram vobis in a case of this sort was proper, since I have no sort of doubt, but that the error might have been corrected upon motion. However, I should not incline for this reason to reverse the judgment; but I concur in opinion with the judge who has gone before me, that the judgment itself is erroneous and must be reversed. I recollect a case, (tho’ I have forgotten the names of the parties) where upon an appeal from the County Court of Middlesex to the District Court of King and Queen, a variance was suggested between the minutes and the record, and the clerk being summoned to attend the District Court with his minute book, and the variance appearing, he was directed by the Court to amend the record, and this proceeding was sanctioned upon an appeal to this court.

*The PRESIDENT. The first objection stated by the appellant’s counsel was, that an error in the judgment itself, could not be corrected in the same court. This was admitted to be law by the counsel on both sides. It was then contended, that the error complained of in this case was in the judgment of the court. In form, it is so; and though the ■ proceedings as drawn up by the clerk, are read over in court, and where there has been a trial, the same are then corrected, yet this is not done where a judgment is confessed as it was here, for in such case, the act of Assembly furnishes a rule by which the clerk is to enter up his judgment. There is no doubt, but the court may amend upon motion where a mistake is committed by their clerk, if there be, as in this case there was, something to amend by. Yet the party was at liberty to pursue the present mode if he chose to do so.

As to the correcting judgment, it is clearly chargeable with the three errors which have been mentioned. Upon the subject of costs I feel some difficulty. It is clear that the court had a power to correct the error upon motion, and therefore it was unnecessary to apply for a writ of error. The former practice (where notice is given of the motion to the adverse party) is upon every principle to be preferred; yet we should not for this reason quash the writ, since the party was at liberty to pursue either mode. Yet it would be unjust, that Gordon should pay the costs unnecessarily incurred in correcting the mistakes of the clerk. But I was somewhat perplexed as to the law respecting this subject, writs of error coram vobis being so unusual in this country, as not to come fully within any of the acts relating to costs.

This case occurring in the year 1790, the act of 1792, Ch. 66, % 64, (see Rev. laws p. •87) cannot have any influence upon it. The District Court law passed in 1788, Ch. 67, ¡S 73, refers this subject to the law enabling the General Court to settle and adjust costs. Upon examining that law (passed in the May session of 1783, Ch. 40, Chan. Rev. p. 207) the General Court are authorised in cases of appeal, writs of error, supersedeas or certiorari from the inferior Courts to award costs. This applies not to writs of error in the same court. We then assimilated this to the cases of motions, where, by the same law, the costs are discretionary. Yet this discretion is to be exercised with reason, and as I am clear that it was unreasonable to award costs in this case, I am of opinion, that the judgment is erroneous upon this point also.

*Judgment reversed with costs, and entered for 1460001bs of tobacco, the debt in the declaration mentioned, and the costs of the appellee in the District Court expended to the time of enterng the first judgment, but to be discharged by the payment of 49,085)^lbs of sound merchantable tobacco inspected either at Fredericksburg, Falmouth, Port Royal ■or Hobs-hole warehouses with interest &c. and the costs of the first judgment.  