
    *Eubank and Others v. Ralls’s Ex’or. Same v. Sandige Assignee &c.
    February, 1833.
    (Absent Brooke, j.)
    Records — Entry of Judgments — Clerical Mistake — Correction.— Judgment upon nil dicitin county court, entered on the minute hoot, “for specialty and costs,“ and then entered at large, by the clerk, in the order hook for debt with interest from 1st March 1817, the date of the specialty, though the day of payment appointed in the condition was the 1st March 1818; the clerk, in his entry in the order book, following, not the condition of the bond, but a memorandum thereon indorsed, that the debt if not punctually paid should bear interest from the date ol the bond: Hisui, 1. it was error to, giye interest from the date of bond, instead of the day of payment; and 2. this error was a clerical mistake, amendable by the court, at a subsequent term.
    Same — Same—Same —Same.—A like error in entering an office judgment in the county court, in debt on a like bond: and Hisud, a clerical mistake, amendable in like manner.
    Same -Same — Same-Same.—A like error in entering an office judgment in circuit court, in debt on a like bond; and Hnrm, a clerical mistake, amendable in like manner.
    Same - Technical Histake in Judgment — Haw Amendable.- Quaere, whether a mere mistake, technically in the judgment of the court Itself, be not amendable, In like manner as clerical mistakes, under the provisions of the statute, 1 Rev. Code, ch. 128, § 108-10?
    Writs ot Error — Statute oí Limitation — How Relied on. —The statute of limitations of writs of error, if it apply to writs of error coram nobis, cannot be relied on without being pleaded: and,
    Same — Same—Application to Writ of Coram Nobis.— Quaere, whether it does apply to writs of error coram nobis?
    Execution on Erroneous Judgment — Reversal—When Restitution Awarded. — Where execution, has been levied and returned satisfied, on judgment which is erroneous and afterwards reversed or corrected, restitution cannot be awarded, unless it appear that the money has been paid to plaintiff
    Circuit Superiour Courts of Law and Chancery -Jurisdiction. — The present circuit superiour courts of law and chancery have jurisdiction to correct mistakes in judgments of the former circuit courts of law — Ham, in Garland v. Marx reported in a note.
    There were four cases between these parties, on writs of supersedeas to judgments of the circuit court of Amherst, which being nearly alike in their circumstances, were argued and considered together.
    Eubank and two others executed four bonds to Caleb Ralls, all dated the 20th December 1817, and all for the same penal sum of 1548 dollars, with condition, respectively, for the payment of 774 dollars, on or before the 1st day of *March in the years 1818, 1819, 1820 and 1821. On each of these bonds, there was an indorsement in these words: 1‘Memorandum — -If the within bond is discharged within thirty days after due, no interest will be required; if not, interest from the date;” which was signed and sealed by the obligee and obli-gors. The witnesses to the execution of the bonds, were different from those to the execution of the memorandums.
    1st case. In 1819, an action was brought by Ralls against the three obligors, in the county court of Amherst, on the first bond payable the 1st March 1818. The declaration claimed the penalty, without taking notice of the condition or memorandum indorsed. The defendants appeared, and pleaded payment, but afterwards relinquished the plea; whereupon, at November term 1819, the following entry was made on the minute book of the court — ‘ ‘Plea waived, and judgment for specialty and costs.” But the judgment, as entered at large on the order book by the clerk, was for the penal sum of 1548 dollars, to be discharged by the payment of 774 dollars with interest from the 20th December 1817, the date of the bond (according to the memorandum), instead of the 1st March 1818, the day of payment appointed in the condition. Upon the judgment as entered in the order book giving interest from the 20th December 1817, a fieri facias was sued out, and levied on the property of the defendants; a forthcoming bond taken in exact pursuance of the execution; the forthcoming bond forfeited; execution awarded thereupon for the debt and interest as computed in the bond; and execution sued out, and returned by the sheriff satisfied. But whether the money was paid over by the sheriff 'to the plaintiff, did not appear.
    2nd case. An action was brought by Ralls’s executor, in 1819, in the county court of Amherst, on the second bond payable on the 1st March 1819. In this case too, the declaration claimed the penalty, without taking notice of the condition or memorandum. The defendants did not appear, and judgment by default lor want of appearance, was entered ^against them by the clerk in the office, and at November term 1819 confirmed; which office judgment confirmed, as entered at large, was for the penalty, to be discharged by the payment of 774 dollars with interest from the 20th December 1817, the date of the bond, instead of the 1st March 1819, when the money was due according to the condition. And upon this judgment there was the same process of execution as in the first case, and the execution on the forthcoming bond was returned satisfied; but it did not appear, whether or no this money had been paid over by the sheriff to the plaintiff.
    3rd case. An action was brought in the county court of Amherst, in 1821, by Pul-liam Sandige assignee of Caleb Ralls, on the fourth bond payable on the 1st March 1821. In this case the declaration claimed the penalty with interest from the date of the bond. The defendants appeared, and pleaded payment, but afterwards relinquished their plea; whereupon, at May term 1822, the following entry was made on the minute book of the court — “Plea waived and judgment for specialty and costs.” But the judgment as entered at large on the order book by the clerk, was for the penalty, to be discharged by the payment of 774 dollars with interest from the 20th December 1817, the date of the bond, instead of the 1st March 1821, the day appointed in the condition for the payment. There was a fieri facias sued out on this judgment also, and levied, a forthcoming bond given and forfeited, ánd an award of execution thereupon; but what, or whether there were any, proceedings afterwards had in this case, did not certainly appear.
    In August 1826, Eubank and others gave notice to Ralls’s executor, of motions to be by them made in the two first cases, and to Sandige, the assignee of Ralls, of a motion in the third case, at the ensuing November term of the county court, to amend and correct the record of the three judgments respectively, so as to make the first a judgment for the debt with interest-from the 1st March 1818, the day of payment appointed in the condition of the first bond, instead *of the 20th December 1817, the date of the bond; and the second, likewise, a judgment for the debt with interest only from the 1st March 1819, when it was payable; and the third, a judgment for the debt with interest only from the 1st March 1821, when it was payable. The motions were accordingly made; and upon the hearing of them, the county court, — considering that the judgments had been erroneously entered by the clerk through mistake, for the several debts with interest from the 20th December 1817, the date of the bonds, instead of interest only from the dates appointed in the several conditions thereof for the payment of the money, according to what the court held to be the true construction and legal effect of the obligations, — -ordered the records to be amended and corrected, respectively, as proposed by Eubank and others; and, moreover, ordered the forthcoming bonds, and the executions sued out thereon, and returned satisfied, in the two first cases, and the forthcoming bond in the last case, to be quashed. Erom these orders Ralls’s executor and Sandige, respectively, appealed to the circuit court; which, holding that the question arising on the bonds and the memorandums indorsed thereon (the question, namely, whether the dates from which the debts should bear interest, ought to be ascertained by ■ the conditions of the bonds, or by the memorandums indorsed on them) was of a judicial nature, and, therefore, that the errors complained of were not clerical mistakes, which the county court could correct, — reversed the judgments of the county court, and overruled the motions. And then Eubank and others applied to this cqurt for writs of supersedeas to the judgments of the circuit court; which were allowed.
    4th case. Upon the third of the bonds payable the 1st March 1820, a suit was brought very shortly after the debt fell due, by Sandige as assignee thereof, in the circuit court of Amherst. In this case, as in the two first, the declaration claimed the penalty, without taking any notice of the condition or memorandum indorsed. The defendants did *not appear, and judgment by default was entered by the clerk, and confirmed September term 1820; which office judgment confirmed, as entered at large, was for the penalty to be discharged by the payment of 774 dollars, with interest from the 20th December 1817, the date of the bond, instead of the 1st March 1820, the day of payment appointed in the condition. But it did not distinctly appear, whether the office judgment was entered at large on the order book, on the last day of the term, and signed among the other orders by the judge, or whether it was entered at or after the term, as of the last day thereof, without being signed by the judge. On this judgment there was the same process of execution as in the two first cases, and the execution on the forthcoming bond was returned satisfied; but it did not appear that the sheriff had paid the money to the plaintiff.
    In January 1827, Eubank and others gave notice to Sandige, of a motion to be made at the ensuing April term of the circuit court, to amend and correct the record of the office judgment, so as to make it a judgment for the debt with interest only from the 1st March 1820, the day of payment appointed by the condition of the bond, instead of the 20th December, the date thereof. The motion was made; and the judge, upon the hearing, being of opinion that the error complained of was not a clerical mistake, but a judicial error, which could be corrected only by an appellate court, overruled it. To this judgment also, this court, on the petition of Eubank and others, allowed a supersedeas.
    The causes were argued here by Stanard for the plaintiffs in error, and by Johnson for the defendants.
    I. The.first question was, whether the original judgments were wrong, in giving the bank interest from the date of the bonds, which the memorandums indorsed thereon provided should be paid, in case the debts were not punctually paid at the dates appointed in the condition?
    Stanard said two of the judgments were entered on the minute book of the county _ court (which was the record") *for the debts due by the specialties, and costs; the other two were office judgments and of course ought properly to have been for the debts appearing due by the bonds, and costs. In entering the judgments at large, the clerk ought to have conformed with the legal construction and effect of the obligations, and instead of giving back interest from the date thereof, should have given interest only from the days of payment appointed in the conditions. The back interest provided for in the memorandums, was in the nature of a penalty. Waller v. Long, 6 Munf. 61.
    Johnson questioned the correctness of the adjudication in Waller v. Long; but he en-deavoured to distinguish this case from that, because, he said, it was to be inferred, from the circumstance of the subscribing witnesses to the execution of the memorandums, not being the same persons who attested the execution of the bonds, that the memorandums were new contracts entered into at a different and subsequent date.
    II. The next question was, whether supposing the judgments wrong in giving the back interest, it was an error of the court, which could only be corrected by an appellate tribunal, or a clerical mistake which the same court might properly correct, on motion or writ of error coram nobis?
    
      On this question, Btanard cited Commonwealth v. Winstons, 5 Rand. 546, and Garland v. Marx, which, he said, were in point to shew that the errors complained of here, were clerical mistakes, amendable by the same court on motion.
    Johnson on the other hand, contended that the errors complained of here, were, in their nature, judicial errors of the court, involving' too a very doubtful point of law, which, therefore, could only be corrected by an appellate court. He cited Bent v. Patten, 1 Rand. 25, and argued, that the cases at bar fell within the principle of that case, and were distinguishable from the cases of Commonwealth v. Winstons and Garland v. Marx.
    *111. Johnson insisted, that the motions to amend, in the 1st, 2nd and 4th cases, wherein final judgments were entered more than five years before notice given by the appellants of their motions to correct the alleged errors, were barred by the statute of limitations, 1 Rev. Code, ch. 128, ‘i 19, p. 492.  This objection presented the general question, whether writs of error coram nobis, or motions, to correct clerical mistakes in proceedings in the same court, were within the statute? But Stan-ard also maintained, that whether the statute embraced such cases or no, it could not be relied on here, because it had not been pleaded in the court below.
    IV. The last point was, Whether the county court, after correcting the errors as to the back interest, and quashing the executions on which the debts with the excess of interest had been levied, ought not to have proceeded further, and awarded restitution?
    
      
      Records — Clerical Errors — Correction. — For the proposition tbat clerical errors may be corrected at a subsequent term of tie court, the principal case is cited in foot-note to Price v. Com., 33 Gratt. 819, where there is a collection of authorities on this subject. On this question, the principal case is also cited in Shelton v. Welsh, 7 Leigh 177; Saunders v. Lipscomb. 90 Va. 652. 19 S. E. Rep. 450; Shadrack v. Woolfolk, 32 Gratt. 714
      The proceeding to correct such errors is by motion to the court in which they occurred. Snead v. Coleman, 7 Gratt. 306. citing Eubank v. Ralls, 4 Leigh 308; Shelton v. Welsh, 7 Leigh 175; Digges v. Dunn, 1 Munf. 56. To the same effect, the principal case is cited in Goolsby v. St. John. 25 Gratt. 157. The principal case is cited in dissenting opinion of Allen, J., in Greenesville Justices v. Williamson, 12 Leigh 106.
    
    
      
      Execiition on Erroneous Judgment — Reversal—Restitution.- Por the proposition that, where execution has been levied and returned satlsiied, on a judgment which is erroneous and afterwards reversed or corrected, restitution cannot be awarded, unless it appear that the money has been paid to the plaintiff. the principal case is cited in Erskine v. Henry, 6 Leigh 385; Fawkes v. Davison, 8 Leigh 560.
      See monographic notes on "Executions'’ appended to Paine, Surv., etc., v. Tutwiler, 27 Gratt. 440, and “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
      Reported in a note at the end of this case.
    
    
      
      Tlie words of the statute are — “No writ of error or supersedeas shall be granted to any judgment of a court of law, after the expiration of five years from the time when such judgment shall have been made final; saving to all persons non compos mentis, infants, femes covert, imprisoned, or out of the U. States in the service thereof or of this state, three years after their several disabilities removed.”— Note in Original .Edition.
    
   TUCKER, P.

There being, in these four cases, only one or two minor points of difference, I shall consider them, as they have been argued, all together.

The first question is common to them all; and after having carefully considered it, I am satisfied that the case of Waller v. Eon g is decisive upon the point. I shall, therefore, dismiss it without further remark.

The provision, then, exacting interest in default of punctual payment, being in the nature of a penalty, and to be disregarded according^’, it is clear there is error somewhere in those proceedings. It seems to have been somewhat questioned, whether the error was in the entry of the judgment, and so proper to be amended upon motion; or in the '"'execution, and so to be corrected upon a motion to quash. I do not think it important; for though the notice is to amend and not to quash, yet it gave sufficient information of the plaintiff’s object to justify either motion. I am, moreover, of opinion, that the proper motion was to amend. Eor it appears, that when this motion was made, the complete record, made up from the minutes, was erroneous in the point in question: with this the execution corresponded; and, of course the execution could not be quashed, until, the record itself was corrected. So that, although the judgment of the court upon the minutes, was correct, the record of the judgment, as entered at large, which it was sought to amend, was erroneous, and was the proper object of correction.

Was this error amendable upon motion? or was it such an error in law, as can be only amended by writ of error from a su-periour tribunal? There seems to have been some difficulty, in drawing the line between clerical errors, and errors in law or in the judgment of the court. I am not, at this time, prepared to say that it can or cannot be distinctly defined a priori. But this, at least, may safely be affirmed, that from the english statute of 14 Ed. 3, stat. 1, ch. 6, which is said to have been the first statute of amendment, down to our statute of 1819, 1 Rev. Code, ch. 128, § 108, p. 512, the legislative will has leaned to the amendment of mere misprisions, without the necessity of encountering the expense and trouble of a writ of error. Such is obviously the policy evinced in this last statute. The principles of the common law inhibited the allowance of a writ of error in the same court in which the judgment was rendered, for any error in the judgment of the court itself; for, if that were allowed, it would be infinite. But where the error was in the process, or a misprision of the clerk, it might be corrected by the same court, without involving inconsistency, or leading to endless contests about what the record ought to be. In this spirit, the statute of 1819, above quoted, not confining itself to clerical errors, or errors in the process, or to the *mere ministerial acts of the officer of the court, extends to the very judgment of the court itself: it provides, that “where, in the record of the judgment, there shall be any mistake &c. and among the records of the proceedings, there shall be any verdict, bond, bill, note or other writing of the like nature or kind, whereby such judgment may be safely amended, the court in which such judgment shall be rendered, shall amend it according to the very right of the case.” Here, it is clearly manifested, that though the error be in the judgment itself, if there appears to have been a mistake in it, it shall be amended. Thus, if a verdict be rendered for ^100. and the judgment on it entered for 100 dollars, there is an obvious mistake, which may be corrected under the statute of 1819, by the verdict, to which it may be fairly presumed the court designed to conform. This statute, I think, relieves us from much of the former difficulty in relation to the distinction between clerical errors and errors in the judgment of the court. For, if it appears, that there is a mere mistake, miscalculation or misrecital, the statute is imperative, that the correction shall be made. But if, upon the inspection of the proceeding, the matter complained of appears to have proceeded from error in the opinion of the court, and not from mere mistake, the case is not within the statute: for the mistake, whether of the clerk or of the judge, to which the statute refers, is not an error of judgment, but an error in which the judgment has no participation.

Since this statute, then, I conceive, there are two classes of errors amendable by the same court in which the judgment is rendered: 1. all such errors as were deemed clerical, or were amendable before the act; and 2. all such mistakes even in the judgment of the court, as can be amended by any verdict, bond, note, or bill &c. in the record.

The wisdom of the statute, and the policji of construing it according to its spirit, is very obvious, when we look to the conse-; quence of'permitting mere mistakes to be amendable only by writ of error from an appellate tribunal. The *expense of the proceeding, the tying up a just demand for a long time, foi an error which the inferiour court would itself acknowledge the instant it was pointed out, the accumulation of appeals in this court, and the consequent increase of the evil of delay, all conspire to sustain the propriety of leaving the inferiour courts to correct whatever is merely referable to mistake, and of confining the powers of the appellate courts to those errors which cannot properly be revised by the tribunal which has committed them, because it had deliberately committed them. I am happy, therefore, to find that the three judges who sat in Commonwealth v. Winstons, S Rand. 546, concur in the explicit admission, that the statute of 1819 comprehends the mistakes of the court as well as those committed by the clerk.

Was there, in the cases before us, a mere clerical mistake? or was there an error in the judgment of the court?

First, as to the cases in the county court. One of these is the case of an office judgment, confirmed for specialty and costs. In the other two, the entry on the minute book is, ‘ ‘Plea waived and judgment for specialty And costs.” All of these are strictly correct and justified the clerk when he should extend the minutes, and make up the complete record from them, in entering the judgment for the penalty in the respective specialties, to be discharged by the payment of the sum due with interest, not from the 20th December 1817, the date of the bonds, but from the respective times of payment. Up to the judgment then, inclusive, there was no error. The error is since the judgment, in its extension by the clerk in the complete record. Now this extension was strictly a clerical act, and was therefore amendable even independent of the statute of 1819.

Then, as to the judgment of the circuit' court. In that case, there was an office judgment entered erroneously for interest from the 20th December 1817, instead of the 1st March 1820. Now, I take it, this was clearly amendable by the circuit court, under another provision of the statute, 1 Rev. Code, ch. 128, ? 77, that “the court shall have *control over all proceedings in the office during the preceding vacation, may correct any mistakes or errors which may have happened therein, and may for good cause shewn, set aside any of the rules or proceedings, and make such order concerning the same as may be just and right.” Why? because these are clerical proceedings merely. The office judgment, therefore, though entered by the clerk, might have been corrected by the court. It was not however corrected and not being set aside at the succeeding term, the clerk seems to have proceeded according to the provisions of the statute of 1792 (1 Old Rev. Code, ch. 66, § 42; Pleasants’s edi. p. 80), and to have entered the judgment at large, either actually on the last day of the term, or as of the last day of the term, which, under that statute, would have sufficed; Digges’s ex’or v. Dunn’s ex’or, 1 Munf. 56. I do not think it clearly appears, whether it was actually entered among the orders signed by the judge or not. Suppose it was, yet the judgment so entered was not the act of the court; it was a ministerial act of the clerk, in obedience to the express command of a statute no longer in force. It may be doubted how far the court, even under that statute, could have entered a judgment, variant in a single title, from the office judgment, unless that judgment was either set aside, or a motion made to correct it. But under the act of 1819, 1 Rev. Code, ch. 128, (j 79, the matter is still more clear. That directs, that office judgments not set aside during the term, shall be ‘ ‘considered as final judgments of the last day of the term.” It does not pursue the statute of 1792, in requiring them to be entered as oí the last day of the term. Therefore, they do not now pass at all under the supervision of the court, nor are they entered upon the record. Hence, the entry of the judgment is still the mere act of the clerk, and as such amendable. For the law considers the erroneous entry of the office judgment, as a mere misprision of his, and authorizes the court to amend it. Now, if it was his misprision originally, we have the authority of judge Cabell, in his very *elaborate and most able opinion in Commonwealth v. Winstons, for saying that what was a mere misprision of the clerk in its' origin, does not cease to be so, even where the entry has been read in court and signed by the judge; much less where he has nothing to do with it.

Upon the whole, therefore, I am of opinion, that the error in all these cases was amendable.

The other questions discussed in this case, seem to me to present no difficulty. The record of the judgments in all the cases, being erroneous, and the executions corresponding therewith, the former was very properly made the point of attack. But it was a necessary consequence of the correction of the record of the judgments, that the executions should be quashed, whatever may have been the proceedings under them. Nor was there any bar to the motion arising from the statute of limitations of writs of error and supersedeas, for that act if it applies to writs of error coram nobis, or to motions of the nature of them, was neither pleaded nor relied on in the court below. If it had been, the party might have brought himself within some one of the exceptions.

As to a writ of restitution, which this court is asked to award, as being part of the judgment which the courts below ought to have given, I am of opinion, that nothing appears in this case, to warrant such a judgment below. In those cases in which a levy appears to have been made, there is no evidence that the money was paid to the plaintiff. The sheriff does not so return. It seems to me, therefore, to be one of those cases in which the writ of restitution after reversal can only be awarded upon the party’s suing out his scire facias, or perhaps upon a notice specially stating that a motion for restitution would be made. It is said in Tidd’s Practice, p. 1072, that when the plaintiff has execution, and the money is levied and paid, and the judgment is reversed, the party shall have restitution without a scire facias; because it appears on the record, that the mone3r is paid, and there is a certainty of what was lost; otherwise, i;'where it was levied, but not paid, for then there must be a scire facias, suggesting the matter of fact, viz. the sum levied &c. This is the language of the case in 2 Salk. 588. See also 2 Wms. Sannd. 101, y; 6 Com. Dig. Plead. 3, B. 20, p. 466. I understand it as meaning, that the money must have been paid over to the plaintiff; for if it is yet in the hands of the sheriff, it seems not reasonable that there should be judgment for the amount against the plaintiff. He neither has the money nor can he recover it; for his remedies against the sheriff [in England] are either by rule, bjr action of debt on the return, or by action of assumpsit for money had and received, neither of which could be pursued by him, I presume, after his judgment is reversed, or his execution quashed for irregularity. On the other hand, there could be nodifficuly on the part of the defendant. He might compel restitution from the sheriff (if he had not paid over the money) either by scire facias or by rule: for he is certainly entitled to it, and the court would compiel the officer, if the monej' was yet in his hands, to pay it to the proper person, or if it had been paid into court, according to the exigency of the execution, it would be paid to the defendant by its order. I am, therefore, of opinion, that there should be no award of restitution by this court, but the party may proceed below by rule against the sheriff, or the plaintiff, as the case may be, to recover back the excess he may have been compelled to pay on the executions.

CASK, J.

Agreeing with the general propositions of the president, and the conclusions to which he comes in the main, I should not have said anything in the case, but to prevent the inference (which might be drawn from my silence) that I consider the case of Commonwealth v. Winstons as overruling Bent v. Patten. I am pretty sure, that such was not the intention of my brethren, and know it was not my own. We considered the cases distinguishable; as I also think Bent v. Patten distinguishable from the cases *now before us; and without saying that I should have gone with the majority in that case, I mean simply to declare that I do not consider myself as overruling it. I think the errors in the cases before us clearly clerical, and properly amendable by the same court in which the judgments were entered. I consider the executions and all proceedings on them properly quashed, after correcting the judgments. But I do not think this court can award restitution, as there is no return shewing (hat the money has been paid to the plaintiffs.

CABELE, J.,

concurred in opinion, that the judgments of the circuit court were erroneous.

In the first three cases, judgments of the circuit court reversed, and those of the county court affirmed — in the last case, judgment of the circuit court reversed, and judgment entered to amend the record of the office judgment, and to quash the execution and proceedings thereon. 
      
      The case of Garland v. Marx, (referred to in tile argument of this case) ruled March 1832, was thus: Debt, in the circuit court of law of Amherst (under the statute concerning foreign bills of exchange, 1 Rev. Code, ch. 126, § 2, p. 485, and the act of incorporation of the Farmers bank, 2 Id. ch. 196, § 15, clause 13, p. 90) by Joseph Marx against Gustavus Rose, the maker, and John Rose and David Garland, the in-dorsers, of a x>romissory note negotiable at the Farmers bank, for 2150 dollars. The capias was returned executed on John Rose and Garland, but as to Gustavus Rose that he was no inhabitant: whereupon it was ordered thatthe suit should abate as to him. The declaration was as usual, against all three defendants, but the proceedings were only against the two on whom the process had been served. These two defendants appeared and pleaded to issue, and there was a verdict and judgment for the plaintiff; but in the caption of the judgment entered in the order book, the case, through inadvertence, was stated as one between Joseph Marx, plaintiff, and Gustavus Rose, John Rose and David Garland, defendants: so thatthe judgment appeared in tile entry as a judgment against all three defendants, though the suit ha,d abated as to Gustavus Rose. Garland appealed from the judgment, and gave an appeal bond, the condition of which recited the judgment according to its caption in the order book, as one against Gustavus Rose, John Rose and David Garland, While the appeal was pending in this court, Marx moved the circuit superiour court of la.w and chancery of Amherst, to correct and amend the entry of the judgment, so as to make vit a judgment against John Rose and Garland only: and the court ordered the amendment accordingly. And then, Marx, the appellee, moved this court for a rule to dismiss the appeal, unless another and a proper appeal bond should be given by the appellant, — upon the ground, that as the condition of the appeal bond taken in the circuit court of law, recited the judgment as one against three defendants, when in truth it was a judgment against only two, the bond was thereJore naught, and no suit could be maintained on it. in case the j udgment should be aíñrm ed.
      In the argument of this motion, by Johnson for the appellee, and Stauard for the appellant, two points were made: 1. Whether the error in the judgment was a. clerical one, such as the circuit court of law, if it still existed, would have been competent to amend, on motion, at a term subsequent to that at which it was entered? and 2. Whether, since the new organization of the judicial system, by the statute of April 1831. Bess. Acts of 1830-31, ch. 11, p 42, It was competent for the circuit superiour court of law and chancery, to amend such an error In the' entry of a judgment oí the former circuit court of law?
      Tucker, P. The judgment in the court below, in this case, having been corrected upon motion, in a point in which it wras confessedly erroneous, and that correction producing a variance between the judgment as amended and the recital of the judgment in the appeal bond, it is apprehended there would be a fatal objection to a recovery upon the bond. That It would lie so, there is no doubt. The counsel for the appellee, therefore, considering the appeal as now depending without an appeal bond, in effect, asks a rule to dismiss the appeal, mi-less the appellant shall enter into a new bond corresponding1 -with the judgment as fit now stands amended. To this rule various objections have been presented.
      1. It is denied, that the present circuit superior court of law and chancery had jurisdiction to amend any error, upon motion, in the judgment of the former circuit court of law. We cannot accede to this opinion. The statute of 1830-31, ch. 11. § 55, Sess. Acts, p. 60, provides, that all judgments of the former circuit courts of law, which remain wholly or in part unexecuted, shall be executed by the respective circuit superior courts of those counties wherein the court was held, by which the same may have been rendered. The present circuit superior court, then, has jurisdiction to proceed to execute this yet unexecuted judgment. It has jurisdiction over the case. It would be going far to say, that it has the power to execute the said judgment, on the part of the plaintiff, and yet it is without jurisdiction to act upon that judgment, as justice requires, on the part of the defendant. The jurisdiction'to execute the judgment, carries with it the right to exercise the accustomed powers of the court over the judgment, in adjusting the rights of the parties. But again: The new courts are invested with jurisdiction over all causes arising within their respective jurisdictions, which were cognizable in the circuit courts of law formerly existing. Id. §23, p. 48. Now, the former circuit courts of lawhad jurisdiction to correct this error, if it was a clerical error, upon ^motion. Therefore, the present court has that power. Nay more; upon the attempt of the plaintiff to enforce this judgment, a cause of action would at once arise on the part of the defendants, to correct any error in it by the ordinary means of a motion or writ of error coram nobis. We think, therefore, there is no doubt on this point.
      2. It is said, this is not a clerical error, and, therefore, the circuit superiour court of law and chancery had not a right to correct it; and if so, that we must consider it as if it had not been corrected, and then the bond will not vary from the judgment, and so no new bond will be necessary. The line of distinction is not very clearly marked1, between clerical errors and errors in the judgment of the court; nor will the court, in this case attempt to define it. The court is of opinion, upon an inspec-' tion of this record, that the error here must be considered as clerical. The writ as to G-ustavus Rose had been returned no inhabitant; and the suit was therefore abated as to him. The declaration was indeed against all three, but all the proceedings were, as they ought to have been, against the two on whom the writ was returned executed. They only gave bail; they only could plead: they only did plead; the issue was joined as to them only; the verdict was against them only. Then carne the erroneous entry of the judgment; in which the name of Gustavus Rose was inserted, by mistake, in the caption of the entry. His name is not found in the entry itself; yet as the words “the said defendants” are found there, they refer, in strictness, to the names in the caption: and herein consisted the error. That this error was not actually in the judgment of the court, cannot be denied; for Gustavus Rose, had been out of the cause, ever since the return of the writ, and all the proceedings had been against the other two defendants only. There is nothing to constitute it, technically, an error in the judgment of the court, against the obvious and real state of the facts. The case of Wren v. Thomson, 4 Munf. 380, establishes no such proposition. If we take the facts of that case. — not as the statement of the reporter gives thern, but as the court considered them (however erroneously), there could be no doubt the error there, was not clerical. The court said “the facts in the record prove that the appellant was a defendant in both actions. The declarations include him as a defendant in the suits. The record states that he appeared by counsel and pleaded; the recognizance of special bail includes him. and it cannot be presumed without his consent; the judgments of the court include him;” for the judgments were against the defendants expressly, in the plural number, which must have included the appellant, as there was only one other party besides himself. It is very true, that as to one of the cases, the court seems to have mistaken the facts, if the reporter has not grossly misstated them; for he says, that, in that case, there was no plea filed or appearance entered, except that the defendant on whom the writ was executed in proper person came and acknowledged the plaintiff's action; which could not have justified the judgment against the other, on whom it was ordered not to be served; Ward v. Johnson, 1 Munf. 45. But the law of the case taken upon the state of facts supposed by the court, was doubtless settled very correctly. It presented a matter for correction by writ of error in law, not by motion or writ of error coram nobis.
      *The correction of the error, in the present case, having thus been regular, and the appeal bond thereby vacated, because it does not now correspond with the existing judgment, the question is, What is now to be done? I have had strong doubts, and still have, whether we ought to take up the case piecemeal, and decide upon the character of this entry before we look into the whole record. If that were so, then there could be no new appeal bond required, until the court was ready to pronounce upon the whole case, and then it would be unnecessary, and the requisition frivolous. But my brethren are of opinion, that the question presented by this motion, should be decided before we take up the whole case. Acquiescing (though with strong doubts) in this, it follows, that another appeal bond must be given. At present there is no bond, and the appellant cannot have a right to take the chances of success, and indeed of delay, without giving the assurance required by law, of his performing the judgment of this court.
      As to the form of the bond, there is no difficulty. It must recite, that the party had appealed from the judgment as it now stands amended, and must bind him to prosecute his appeal with effect and pay the condemnation of the court in case of affirmance; precisely as he would do, if the appeal were now for the first time granted. Thus, he will be liable to damages, I conceive, not only from the date of such bond, but from the time of his original appeal. For, if it should turn out that there is no other error than that of form which has been corrected, the law prescribes, that the judgment shall be affirmed; and that affirmance mast be attended by the usual consequence.s, — costs and damages. And this is precisely in conformity with the design of the statute, which intended to discourage expensive appeals to this court where the party might have had redress in the court below. But if substantial error appears, then the reversal of the judgment will absolve the party from the damages and costs.
      The rule is to be made absolute — allowing the appellant reasonable time to execute and file the new appeal bond. — Note in Original Edition.
     