
    *Freeland, Lenox & Co. v. Fields’s Ex’ors.
    [April, 1806.]
    Verdicts — Wrong Recordation — Amendment.—If the jury find a right verdict, but the district court records it wrongly, and enters judgment upon it as recorded, they cannot correct the error by the true verdict, at a subsequent term.
    Evidence — Account.—An account given out by a merchant’s clerk without his authority is not evidence.
    Preeland, Lenox & Co. brought indebitatus assumpsit against the executors of Field, who was surviving partner of Field & Murray, and declared 1. upon a quantum valebant for goods, wares and merchandizes sold and delivered. 2. Upon a quantum meruit, for work performed. 3. Upon an assumpsit of the testator for goods, wares and merchandizes sold and delivered. 4. Upon an insi-mul computasset, with the testator. The defendants plead non assumpsit, and the act of limitations. Issue. Upon the trial of the cause, the defendants filed a bill of exceptions, stating, that they offered in evidence, an account, which they proved to be in part, but not altogether in the hand-writing of one Bower ; (who was once a clerk of the plaintiffs, afterwards a clerk of Field, the testator; and after his .death, again clerk to the plaintiffs): And that the last charges in the said account, in the hand-writing of the said Bower, are dated after the death of Field, the testator. That the court rejected the evidence, “Because the said account was headed and endorsed, Freeland, Lenox & Co. in account with Field & Murray, from which it appeared to the court to be an account, drawn by the defendants against the plaintiffs, and not an account, furnished by the plaintiffs, or their clerk, to the defendants.” The jury found a verdict for the plaintiffs in these words, “We of the jury find for the plaintiffs, and do assess their damages to one hundred and eighty-six pounds eight shillings and ten pence.” But the clerk in drawing up the orders, entered it thus, “upon their oaths do say, that the defendants did assume upon themselves, in manner and form as the plaintiffs against them have declared, within five years next before the time of suing out the writ *of capias in this suit, and they do assess the damages of the plaintiffs, by occasion of the defendants’ non-performance of those assumptions, to one hundred and eighty-six pounds eight shillings and ten pence.” After which follows a judgment in favour of the plaintiffs, to be levied of the goods and chattels of the testator, in the hands of the defendants, to be administered. And thereupon the defendants appealed to the court of appeals.
    Since the appeal, an application was made to the district court to amend the entry in the order book, by the true verdict found by the jury : Which being granted, and the amendment ordered to be certified to the court of appeals, the same is now brought up thither by a writ of certiorari.
    
      Wickham, for the appellant.
    Bower was clerk to the plaintiffs when the last articles were added to the account; and therefore it ought to have been received as the account of the plaintiffs. The district court could not amend at a subsequent term. For it differs from a county court, as the judge signs the orders, when drawn up, as a proof of their verity ; and no alteration can be made in them after the term has passed, Co. Eitt. 260 ; but much less after an appeal has been taken, and the cause has come to the appellate court.
    Call, contra.
    The district court very properly rejected the account: for the clerk had no authority to give it out, and the plaintiffs have not signed it: But, at any rate, the clerk ought to have been produced in court, and examined as to the facts. The order book ought to have pursued the issue in framing the entry, 1 Crompt. Prac. 270 : and this court may award a duces tecum to enable them to inspect the original verdict, and correct the misprision. Por wherever there is any thing to refer to, the court has power to amend at common law, Gilb. Hist. Com. PI. 107 ; 3 Black. Com. 301 ; 1 Hal. PI. Cor. 647: And here the proper document existed ; because the verdict is always delivered in writing, *and preserved among the papers in the cause ; which is a more authentic testimonial than the minutes of the clerk of assize in England, where the verdict is rendered ore tenus, 1 Crompt. Prac. 270; yet the latter have always been held sufficient to justify an amendment. T. Jones, 211 ; 4 Co. 52; 5 Burr. 2730 ; 2 Vin. Ab. 314, 319 ; Cro. Car. 185 ; 1 Black. Rep. 453 ; Dougl. 112. The English statutes of amendment, however, embrace the case ; and they are still in force in this country. Por they were all adopted by the act of 1753, Old Virg. Haws, 301 ; and the act of 1792 only repeals the British statutes which were adopted by the act of convention, and not those adopted by act of assembly.
    Wickham, in reply.
    Whether the account offered was the account of the plaintiffs, was a fact which ought to have been left to the jury. No amendment or a misprision of the clerk could be allowed at common law, after the term in which it was committed, 2 Vin. Ab. 290 ; and all such amendments in England are made by virtue of particular statutes, which are all repealed by our act of assembly in 1792. Rev. Code, 302.
    Cur. adv. vult.
    
      
      Record — Amendment.—Upon the question of the amendment of the record the principal case is cited in foot-note to Price v. Com., 33 Gratt. 819, where there is a large collection of the cases and the question discussed. The principal case is also cited on the same question in Hook v. Turnbull, 6 Call 86: Shelton v. Welsh, 7 Leigh 177. See monographic note on “Amendments” appended to Snead v. Coleman, 7 Gratt. 300.
    
   EYONS, President,

delivered the resolution of the court, That the district court did not err in refusing to permit the account to go to the jury ; but that, as the verdict did not find the point put in issue between the parties, namely, Whether the testator (and not the appellants, as stated in the order book), assumed, the verdict ought to have been set aside, and a new trial awarded. That the error could not be corrected at a subsequent term of the court ; and consequently, that the order made by the district court for amending the record, at another term, was not authorized by law. That therefore the judgment was to be reversed, and a new trial awarded.

*The entry was as follows :

“The court is of opinion, that the district court did not err in refusing to permit the account stated, in the bill of exceptions filed in this cause, to have been offered by the appellees as evidence for them, to go to the jury ; but that, as the jury did not try or find the fact put in issue by the parties in this cause, (which was the assumpsit of John S. Field, the testator of the appellants themselves, as found by the jury), there is error in the judgment of the district court, in not setting aside the verdict, and awarding a new trial of the issue : And this court is further of opinion, that the order made for amending the record, and altering the judgment entered on the said verdict, at another and subsequent term after the verdict was given, and judgment entered thereon fully drawn up, read and signed by the judge in open court, is erroneous, the said amendment, after the term, not being authorized by law. Therefore it is considered, that the said judgment be reversed and annulled, and that the said surviving appellant recover against the appellees the costs expended in the prosecution of the appeal aforesaid here. And it is ordered, that the said verdict, and the order for amending the record, be set aside, and that a new trial be had in the cause.”  