
    
      Joseph Weeks vs. John B. Lawrence.
    
    'That Jhidita-Quemla vjiil not He .where the matter of the complaint is a .proper subject for a writ of error.
    
    ■¿That the Clerk’s making up judgment after court, where it is a mere computation furnishes no reason.for -setting aside, or reversing, the judgment.
    '.That in an action against a-Sheriff for an escape, where judgment is rendered by default, or nil dicil, the.entering the judgment is a mere matter of computation.
    'That if the Sheriff would avail-himself of the..poverty of the prisoner in mitigation of damages, he must claim shearing for that.purpose.
    This was an Audita Querela, in which ffleeks< complained that ■Lawrence sued him for suffering an escape of Joseph Beeman and .others,-when in custody on two executions, ;in which there were ■several defendants, chiefly, hut not-wholly, the same in both.executions — that after one review in each case, judgment was rendered against him .by nil dicit — that the judgment against him was .rendered for adarger sum than the amount of the two executions against J. Beeman and others: and that the said Laivrence, with-cut giving any notice to said Weeks, procuredtheolerk-.of the court, after the .court had risen,to assess the-damages and tax-the.cost; and -that the said Lawrence, either -by design .-or-mistake, -assessed the •damages at $2,490,90 ; being $239,60 more than .was due on •said two executions at the time of the commitments and escapes ■complained ofby Lawrence in -his.original writ against said .Weeks-; ■and, in like manner, taxed -the' cost -$2,43 too much : all without the knowledge or-consent of the said Weeks — that he had .not had his day .in court, &c. And praying that said judgment may •be set aside, and he recover his damages, and cost. To this com-plaint Jjawrence demurred ; and it was adjudged sufficient by the ‘County Court. He appealed .to this court for -a rehearing on said (demurrer. 1
    
      
      Aldis and Davis in support ojHhe demurerf The action of Laiorence against the Beemanss was an action on the case for an escape on two executions, both dated October 10,1825. One for $¡1101,25.
    Sheriff’s fees for commitment, - 14,06.
    The other for - 1150,14.
    Committing fees, - 14,60.
    Interest on the judgments, from October 10, 1825, the time of the judgments against the Bee-r mans, to May 7, 1827, which was the date of the judgment and execution against Weeks, 212,77.
    Interest on the committing fees, 2,42.
    215,19.
    Real sum due, - ,f249.5,24.
    The judgment ,agains,t Weeks, was only - ■ 249.0,90.
    The judgment was, therefore, too small by $4,34-.
    1. An audita querela will n.ot lie, unless it appears that the •complainant has sustained, or is liable to sustain, -some wrong or injury, by the .execution; .and, in the present .cas.e., the writ does not show that .the complainant has sustained, or is likely to .sustain, any wrong in the assessment of the damages against him, as the judgment is not more than the .amount of the two executions a** gainst the Beemans, and the committing fees and interest.
    2. The clerk was authorized by the rules of the court to assess the damages in the case. — SeeJLide 10. — Judiciary Act,s. 19,54*
    3. By the constant practice .of the .court, the clerk assesses the ■damages in all cases, wherein judgment is rendered by default, or nil dicit; more especially in those actions where the measure of .damages appears from the declaration j and if the.defendant wishes to,be heard in damages, or desires any other mode of assessment, he should make application to the court, and have .a minute thereof made upon the docket. The complainant in this case, ■.having neglected to make such application, has waived his privilege,and.can .not now take advantage of his neglect, and setasidg the judgment by an audita querela, on the ground- that he has had no day in court, or that he has had no notice O'f the assessment of the damages. — I Sw. Dig. 784.
    4. The amount of damages claimed from PVeelcs, and to which the said Laivrence was entitled, appears from the declaration, and tvhen no greater damages are assessed than appear from the de* duration to be due to' the plaintiff, there is no grievance to be complained of.
    5. Judgment by. nil dicit is á spdeies of default, and if the de* fendaut does not, on such judgment, make application to be heard in the assessment of damages, he impliedly consents that .judgement may be rendered against him for the amount claimed by the plaintiff in his declaration. — 1 Tidd. 505.
    6. The taxation of costs is a matter of discretion with the court, and an audita querela cannot be sustained for any error in iaxing costs in this case;
    
      Roycecind Hunt, for the complaindtii. 1. We contend that the complaint in this action discloses grounds for some sort of relief. 1. For the excessive interest and cost set forth in the complaint. 2. Because the clerk assessed the damages out of Court. The latter is relied on as the most important and conclusive ground of complaint.
    The sheriff has a right, in all cases of escape, to show the cir. cumstances of the debtors in mitigation of damages. — Stat. jp-218. And the créditóriá not, in any such case,to recover beyond his actual damagesoccasionedby such escape. From this we contend that, in no case for a mere escape, whether voluntary or negligent, is the creditor entitled to judgment, as a matter of course^ for the full amount of his execution against the debtor 5 but it behoves him to show the amount of his actual damages, as in Other cases of uncertain damages. If we are right in this, it follows, of course, that tile assessment of the damages is a judicial act, necessary to perfect the judgment, and to be performed by the court, or under their supervision and sanction ; and that an assessment by the clerk, out of term time, is wholly nugatory and void. But, if the creditor is not obliged to produce evidence in regard to his damages, and the statute has only secured to tho sheriff the right of going into such evidence diJ his' option, still the creditor should make up1 bis damages during the term, that the sheriff may have reasonable notice of the" extent of his claim, and move the court for a hearing in damages, if he' thinks proper.
    It is insisted that the form? of the action' decides' the right of the1 sheriff to show the actual damages. — 2 T. R. 126, Bonafous vs.Walker.- If, however, it is doubted whether this right extends to a case'of voluntary escape, we contend that the court are not bound to regard the escape, in this case,, as voluntary. If the original declaration charged a voluntary escape',■ (of which there is' reason to doubt from the face of this complaint) yet the creditor' was entitled to' recover upon proof of a negligent escape only.-— 2 T. R. 131 ,-above died. — Beakds Ev. 549. This being the' Case, a judgment by nil dicit, or default, is not an irrevocable ad-mission that the escape was in fact voluntary ; but is only a confession of a cause of action for which the creditor has a right to recover under that declaration. It wotild follow that the sheriff had a right, after the default, or silent judgment, to raise' the question upon' evidence,- whether the escape was voluntary or' negligent ? and, if the latter to show the actual damages.
    II. We. contend that an- audita querala i's a proper remedy in this case. We know óf no other remedies which might be sug--gested, except a writ of error, or an application to the County Court by way of m'otio'n. A writ-of error would not reach our' whole ground of complaint. It could give no relief against the' illegal assessment of damages out of term ; for the record does not disclose this irregularity. The practice of correcting errors and illegalities in the proceedings of our courts, by motion afterfinal judgment, has never prevailed in this state, and, from the organization of our judiciary system, could not answer the purposes of justice. And, even if relief might have been obtained in this way, the remedy by audita querela is not taken away; but is concurent with other remedies. — 10 J\íass. Wo,Lovejoyvs. Web-ber. — 17 Id. 158, Brackett vs. Winslow. — 1 Bac. Ab. 195. — 1 Jacob, 176. The injustice of which we complain, in this case, has arisen since the judgment: for the judgment, which the court rendered against the sheriff, was only that the creditor had z 
      Hglit to recover such damages as upon, or after hearing of the evidence, should appear to be just. The assessment by the clerk is no part of the judgment and yet there is no other way in which the sheriff can be relieved from it.
   Hutchinson, J.

after stating the case, delivered the opinion of the court. The question tobe decided is, do the facts* contained in this complaint, entitle the complainant to all or any part of the' telief sought ? It is very important that, in all judicial proceed-1' ings, the remedy to be applied should be adopted to the greivance complained of: and the experience of ages has drawn some practical lines of distinction between different remedies, which, if followed* Will do more substantial justice than any new course that could now be framed. The writ of error and the audiia quarelaf not only come to us as writs known at common law, but our statutes refer to each, regulating their allowance, and, in some measure, showing' their effect. That important distinction, of which we should never lose sight in applying these remedies, is, that the ‘writ of error fastens upon errors committed by the court, does them away, and proceeds to do justice between the partiesthat justice which the court below ought to have done. The audita querela seizes upon the misconduct of the recovering party, as a reason for setting aside an execution for a cause arising after judgment, or for setting aside the judgment on the ground that the complainant has had no day in court. And, when either the execution or the judgment is thus set aside, the complainant recovers the damages he has sustained by the wrongful act of the party, of which he complains. In the case now before the court, there is no complaint of the execution but what is predicated upon the irregularity of the judgment. The irregularity complained of is, that, after the complainant had been properly brought before the court, and had appeared, and reviewed his cause,, and let judgment pass by nil dicit, the judgment was in fact made up by the Clerk after the rising of the court.

Allowing this to be so, and allowing the damages to be in their nature uncertain, as the complainant contends, it would be the proper subject of a writ of error, for error in fact, in which this court could reverse the judgment so far as relates to the assess-m'ént of damages, and order a new assessment which wóuld do ample justice betweeh? the parties. But it would be no ground for an audita querela, to throw the original plaintiff out of court, and compel him to pay damages for this proceeding, and bring a new action to recover his debt. So, if a mistake intervened in taxing costs, a writ of error would be the proper remedy ór, the court on motion would tax anew, as justice required'. It is probable Such a correction might be proper as to’ the' review, Said to have been paid by Weeks, and half of óne fulí attorney’s fee, faxed for th'e Credit^ or 5 but that furnishes no' reason fo'r setting" aside the whole judgment. With regard tó the' Clerk’s doing this business after thé court had risen, that is of no consequence, provided the act done by him was the proper business of the clerk. As well might oné complain that the' clerk cast the interest upon a note, in a case defaulted, arid éntere'd the' judgment after the court had risen ; or .that he made his récord after the' court had risen. The usual course, and the propér arid necessary course, is, for the clerk to make all necessary minute's in term time, showing a disposal of the actions, and make the entries in detail after the court has adjourned : and all this, Whén done, is treated and íéco'r'ded as done in term timé. Without such a éodrseo'f practice, the court must tarry by till the clerk’s business of the term is all completed; which would bé a useless waste of time ; for any mistake of the clerk, in any o'f his appropriate duties would afterwards be corrected orf motion to the court, to amend the record núncpro time.

The nioré important point raised, which we are ready arid willing to decide, though but little necessary for the disposal of this complaint, is, Whether the assessing off the damages, in this" case,was the propel-business of the clerk ? We consider it to be so, prima facie ; as much so as wo'uld be the casfirlg Of interest upon' d note after judgment by default or nil dicit. In that case the amount of the note and interest would constitute'the damages. Iri this case the amount of the judgments, executions, and commitment fees, with interest on the same, constitute the damages.-Thisis prima facie the case. If the sheriff would derive benefit from the provisions of the statute, to mitigate the damages, he must come in the way the statute supposes. He must shew tbs poverty-of the prisoners. And this must be done on trial-; or at least, on .a motion for a bearing ip damages : and is a .proper subject for the investigation of the jury. We recollect no instance of such a defence presented in any other way than .to-the jury.

Royce and Hunt, for the complainant.

.Mdjs and Davis, for the defendant,.

Here the complainant had his day in court to present his testi-? mony upon this point/ and his suffering judgment to pass against him, as he did, was a waiver of this defence, whatever might have been its efficacy to diminish the damages.

But the complaint suggests that the damages are greater than the amount of the executions,. This is a ;caytious expression which the complainant might have sworn to wjth truth ; but he keeps out of view the interest to which .thp creditor was entitled. Taking into view the principal and interest, to which Lawrence was ■entitled, the complaint notonly fails to show'the complajnant injurr ed in the assessment of the damages, but it shows ihat.he was not tlius injured. A cast; readily made, shows .that the damages were not assessed too high.

The judgment of the court is, that the complaint is insufficient, a.nd we award to the creditor, Lawrence, six per cent, interest, as •damages for the delay, together with costs. ‘ '  