
    Emory and Others, Paupers, v. Erskine.
    February, 1836.
    Richmond.
    (Absent Cabell, J.)
    Practice — Supersedeas—Failure to Enter Order Denying— Eftect after Long Lapse of Time.— Petition to this court for a supersedeas is rejected, and order is entered accordingly; afterwards, at same term, a motion is made for reconsideration, and the court agrees to reconsider, but by inadvertence no entry is made setting aside the order denying the supersedeas: more than three years after-wards the motion to reconsider is renewed: EIeld, the motion cannot xiow be entertained.
    Same — Same—Same -Correction at Subsequent Term— Qurere. — Whether, in case of an order made by this court, but the entry omitted by inadvertence of the court or misprision of the clerk, such omission may be corrected at a subsequent term? And per Tuokku, I’., it seems that it may.
    Emory and seven other negroes brought a suit in forma pauperis against Erskine for the recovery of their freedom, in the circuit court of Berkeley. The claim of the plaintiffs to freedom rested on the last will and testament of Absolom M’Coy, who died in 1803. The testator, having first given his whole estate real and personal to Rebecca Crouch for life, afterwards bequeathed as follows — “I give and bequeath, at the death of her the aforesaid Rebecca Crouch, all my personal estate (except my negroes, which are then to be free and at full liberty) to Thomas and Gustavus Eakes, to be equally divided between them.” The plaintiffs were children of slave.s held by the testator at his death, born during *the life of Rebecca Crouch, who died in 1828. Erskine was Mrs. Crouch’s executor, and it was thus that the plaintiffs came into his possession. This state of facts being found in a special verdict, the circuit court held that the plaintiffs were not entitled to their freedom, and gave judgment against them, upon the authority, no doubt, of .Maria v. Surbaugh, 2 Rand. 228. The plaintiffs, in December 1832. applied by petition to this court in term time, for a supersedeas to the judgment, which the court denied (upon the same authority, as the reporter knows), and this was entered of record. But in a few days after and at the same term, a motion was made to the court to reconsider the application for the supersedeas, and the court agreed to reconsider it; but no order was entered setting aside the former entry denying- the superse-deas, and the case was not mentioned after-wards during that term. And now’ the motion for reconsideration was renewed. The other facts affecting the question of the propriety of-the reconsideration asked, are stated in the opinion of the president.
    
      
      Practice — Correction ot Record. — The principal case is cited in foot-note to Price v. Com., 33 Gratt. 819; Murray v. Carret, 3 Call 373.
      Same — Redocketing oi Causes. — The principal case is cited in footnote to Thornton v. Corbin, 8 Call 331, 221; Casanova v. Kreusch, 31 W. Va. 729.
    
    
      
      This was in consequence of a doubt, whether the authority of the case of Maria v. Surbaugh was applicable to this case; and from what afterwards transpired in another controversy arising out of the will of the same testator, it appeared to be the opinion both of the bar and of the bench, that it was not applicable, at least not certainly so. — Note in Original Edition.
    
   TUCKER, P.

It is within the recollec- . tion of the counsel and of one of the bench, that the court did agree to reconsider the application for a supersedeas in this case, at the same term at which it was denied; and the court must presume, I think, that a direction was given to the clerk to make an entry setting aside the order by which it was denied. It not, then there was at least an omission on the part of the court to direct the entry, which was one necessarily consequent upon the agreement to reconsider. If there was such an order, and it was *omitted to be entered by the clerk, the case seems to be very nearly if not exactly similar to that of Beasley v. Owen, 3 Hen. & Munf. 449. There are other cases also in the books, in which similar omissions and mistakes have been remedied at subsequent terms of this court. Such was the case of Thornton v. Corbin, 3 Call 232, and such was said by Mr. Call in 3 Hen. & Munf. 449, to have been the case of Murray v. Carrot & Co. though the point does not appear in the report of the case in 3 Call 373. We have recently, I think, acted upon the same principle in a case the name of which has escaped me. It seems, indeed, essential that this court should exercise the power upon motion of correcting mere clerical errors or omissions in the orders of the court; and I should, therefore, be disposed to proceed to reconsider this case, but for some considerations peculiar to it.

In the first place, this application has been most unreasonably postponed, and for that reason is not entitled to favour. The fact, moreover, that this delay was of purpose, and that the application was considered as abandoned, renders it still more improper at this time to interfere. Whether the paupers are really still prosecuting their claim to freedom or not, we know not; but certain it is, that the interference of Er-skine himself (as stated by the counsel) suggesting that the application should be waived, would seem to indicate that the case is under the control of their adversary rather than prosecuted by .themselves. This has led me to reflect upon the relation of the parties.

And here I find, secondly, that according to the special verdict Erskine is not the owner of the plaintiffs, if they are slaves. They were bequeathed by M’Coy to Mrs. Crouch for life, and after her death to Thomas and Gustavus Eakes. Mrs. Crouch held them during her life, when her title ceased. By her will she made Er-skine *her executor, but as her title expired with her last breath, he had no title to hold them as her executor. The suit, therefore, is not against the persons entitled. It cannot therefore bind them, if the slaves succeed. Nor can they take advantage of the judgment if against the slaves; for the effect of a judgment must be mutual, and as they would not be bound b3’ it, so neither can they have advantage of it. The slaves majr sue them in forma pauperis, and this judgment will be no bar if they can shew title to their freedom. It is, therefore, evidently of no importance to the slaves to allow this appeal; and I am therefore of opinion that the motion to reconsider be rejected, as the reconsideration would be nugatory.

CARR, J.

Without admitting or denying the power of the court to correct errors of this sort, after the term (a question on which I have not made up my mind), I am clearly of opinion that it is a power which ought to be very cautiously exercised, — in cases only where the mistake is very clearly made out, and the application very recent; neither of which marks the case before us. I am therefore decidedly of opinion, that we ought not now to look into the record.

The other judges concurring in refusing to reconsider the application for a superse-deas, motion overruled. 
      
      Note by reporter. See Pugh’s ex’or v. Jones, 6 Leigh 299.
     