Commonwealth v. Winstons
| Decision Date | 21 August 1827 |
| Parties | Commonwealth v. Winstons |
| Court | Virginia Supreme Court |
This was an appeal from the General Court.
The whole case is so fully discussed in the opinions of the Judges, that any other report would be unnecessary.
Judgment reversed.
The Attorney General, for the appellant.
Copland and Johnson, for the appellee.
In June, 1818, the Commonwealth obtained a judgment against George Winston in the General Court, for $ 17,993 24 cts with interest from the 19th of April, 1817. As to $ 5,631 80 cts. part of this judgment, Winston appealed, leaving $ 12,361 44 cts. for which there was an undisputed judgment against him. For this last sum Winston obtained an act of Assembly, passed the 2d of March, 1819, allowing him five six and seven years to pay it off by equal installments. To secure these payments, he executed a bond, dated June 21st 1819, with two sureties, for the sum of $ 24,792 88 cts. conditioned to pay $ 4,120 48 cts. on the 2d of March, 1824, and the same sum on the same day of the two following years, with interest on each installment from the 19th of April, 1817. The time for the payment of the first installment having passed, the Auditor gave Winston and his sureties notice, that a motion would be made in the General Court, on the 15th of June, 1824, for judgment against them for that installment, with interest from the 19th of April, 1817. On the hearing of the motion, the defendants not appearing, judgment was rendered for the penalty of the bond, to be discharged by the payment of $ 4,120 48 cts. with interest from the second of March, 1824, and such other sums as should afterwards appear due, on scire facias being sued out. A notice was given by the Auditor to the defendants, that a motion would be made to the succeeding General Court, to amend this judgment; it being erroneously entered, in this; that it is made to carry interest from the second of March, 1824, instead of the 19th of April, 1817, as called for by the bond.
The General Court overruled the motion to amend the judgment. The Attorney General, for the Commonwealth, excepted to the opinion, spreading the facts upon the record, and took an appeal.
We are to consider, whether in this judgment the General Court erred.
At the common law, an error committed by the Court, not in a point of judgment, but such as might be called a misprision of the Court, could be amended; but, no misprision of the clerk was amendable after the term. 8 Colo. 157, Blackmore's Case. By the 14th Edw. 3, chap. 6, (which was the first act of amendment) it is enacted, that by the misprision of clerks in every place wheresoever it be, no process shall be annulled or discontinued, by mistaking in writing one letter or one syllable too much or too little, & c. but shall be hastily amended in due form. Upon this statute, many doubts seem to have arisen; among others, whether a word might be amended; as the statute speaks only of a mistake in writing a letter or syllable too much or too little; and it was determined, that under the statute, words, as well as letters and syllables, might be amended.
The most important English statute on this subject, is 8th Hen. 6, chap. 12, by which Judges had power to examine records, and in affirmance of judgments, to amend all that to them, in their discretion, should seem to be the misprision of the clerk.
In 1753, 6 Stat. at Large, 339, it was enacted, that all the English acts of jeofail and amendment, shall be in full force in this Dominion also. Under the statute of 8th Hen. 6, many decisions have taken place in England, drawing the line of distinction between misprisions of the clerk, and errors in judgment. See Petrie v. Hannay, 3 Term. R. 659; Manners, qui tam v. Parten, 3 Bos. & P. 343; Newcomb v. Green, 1 Wils. 33; 2 Vin. Abr. 346, pl. 11; 372, pl. 11; 373, pl. 16; 374, pl. 20; Dunbar v. Hancock, 3 M. & Selw. 591; Short v. Coffin, 5 Burr 2730. In this last case, the suit was against A. as executor, and a general verdict; but the judgment entered de bonis propriis. After a writ of error had been brought in the Exchequer, and in nullo est erratum pleaded, it was moved in the King's Bench to amend; and the Court were all clearly of opinion to amend the judgment, by making it de bonis testatoris si, & c. It was objected, that this was a mistake in law, and cases cited to shew that it could not be amended. But, Lord Mansfield delivered the opinion of the Court, " That this is not an error in the judgment of the Court in point of law, but a mere mistake of the clerk; " and he repeated at large the case of Chapman v. Gale, from 2d Lev. 22, which was debt against an executor, who pleaded fully administered, and verdict and judgment for the plaintiff, which was entered generally; and thereupon error was brought, and it was assigned, that the judgment should have been de bonis testatoris si, & c. But, upon the affidavit of the attorney, that he gave the clerk instructions to enter it up according to the plea, and that it was a mere mistake of the clerk, " it was amended as a misprision of the clerk."
If the case at bar were to be decided under the English statutes, there could be no doubt that the case just cited would be considered a full and clear authority; indeed, a stronger case than ours. There, the whole effect of the judgment was changed by the amendment. Still, as the record shewed that the suit was against the defendant as executor, and the verdict in the same character, and the attorney swore that his instructions were to enter the judgment according to the plea, it was apparent, that the mistake was the clerk's, and as such, it was amendable.
In the case before us, it was contended, that the doctrine of amendments did not apply, because this was a motion, and not an action. But I can see no ground for the distinction. The questions in such cases always are, whether the mistake is clerical, and whether there is any thing in the record, by which the error can be safely corrected; and if these be answered affirmatively, whether it be a suit or a motion, the reason and the law are the same. In our case, there was a bond for the money, with interest from the 19th of April, 1817. The notice informed the defendants, that a motion would be made for judgment on the bond, with interest from this date. The defendants made no defence; thereby admitting the justice of the claim. The judgment is entered for the penalty; but, when the clerk came to state the sum by which it might be discharged, he sets it down as $ 4,120 48, with interest from the 2d day of March, 1824, instead of from the 19th of April, 1817; and evidence was offered to the Court (and improperly rejected by them, I think) to prove by the oath of the Auditor and the clerk, that instructions were given to enter the judgment agreeably to the condition of the bond, with interest on the installment from the 19th of April, 1817, and that the entry actually made, was so made through the inadvertency and mistake of the clerk. These facts leave no rational ground for doubt. They shew the mistake to have been clerical; and they give the safe and sure guides, by which to correct the misprision.
But, it is said, that the English statutes were not in force here, when this case arose; and that is very true. I consider, however, that by the statute of 1753, they were incorporated into our laws, as much as if they had been repeated verbatim; and that they were not repealed by the subsequent declaration, that British statutes (as such) should no longer be in force here; but that they were repealed by the clause in the revisal of 1819, declaring that all laws, not included in that revisal, should be repealed. It was by no means, however, the intention of the enlightened board of revisors, to take away, or to curtail, the salutary power of amendment, so long exercised by the Courts. Accordingly, they inserted in the revisal a clause to the following effect: " Where, in the record of any judgment or decree of any Superior Court of Law or Equity, there shall be any mistake, miscalculation, or misrecital, of any sum or sums of money, tobacco, wheat or other such thing, or of any name or names, and there shall be among the record of the proceedings, in the suit in which such judgment or decree shall be rendered, any verdict, bond, bill, note, or other writing of the like nature or kind, whereby such judgment or decree may be safely amended; it shall be the duty of the Court in which such judgment shall be rendered, and of the Judge thereof in vacation, to amend such judgment or decree thereby, according to the very truth and justice of the case; the opposite party having notice, & c." 1 Rev. Code, 512, sec. 108. This is the law by which we must decide this case.
It is objected, first, that the General Court is not within the words of the law. Secondly, That the misprision is not one of those declared amendable by the law.
With respect to the first, the statute itself declares, that for removing all doubts concerning the Courts to which this act may apply, all things herein contained, not restricted by their nature, or by express provision, to particular Courts, shall be the rules of decision and proceeding in all Courts whatsoever within this Commonwealth. We must enquire, then, whether the clause concerning amendments, either by its nature or its express words, be so restricted as not to embrace the General Court.
It was not, and it could not be contended, that there was any thing in the nature of the power of amendment, which rendered it inapplicable to the General Court. On the contrary, if there be one Judicial tribunal, to which this power is more necessary than another, I should think the General Court...
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