#### Wrenn v. Thompson and Veitch.

Argued Marcli 16th, 1815.

i. Pleading and Practice -Two Suits between Same Parties — Joint Defendants-Writ.* — Two suits were instituí ed on the same day, in behalf of the same plaintiffs. The writ in each case was against A. 13. and G. D.; but endorsed to be served on A. B. only. In one case, bail was required; in the other not. The declarations included both A. B. and C. D. as delendants. The appearance bail, in the case in which bail was required, entered into a recognizance as special bail for them both; and (according to the transcript of the record,) they appeared by their attorney, and pleaded payment. In the other case, no plea was filed, or appearance entered; except that A. B. on whom the writs were served, came, in proper person, and acknowledged the plaintiff’s action in both suits; whereupon, :i udgments were entered against him, and G. *D.*also. It was held that O. D. was sufficiently a defendant to both suits; and that if there was error in the judgments, it could not be corrected, on motion, after five years had elapsed from the date of the judgments.(1)

In the year 1803, Thompson and Veitch instituted two suits in the Haymarket District Court, against Thomas and William Wrenn. On each writ, bearing date August 13th, an endorsement was made, directing it to be served on William Wrenn only. Both writs were returned, “executedand Thomas Pollard, jun. bail, in one case ; no bail being required in the other. At the rules in November, the plaintiffs declared against both Thomas and William Wrenn as defendants, and a recognizance of special bail was filed in the case, which required it, dated the 19th of October 1803; *in*which Thomas Pollard, jun. undertook as special bail for them both. On the 29th of May, 1804, “the defendants,” by their attorney, pleaded payment, and set aside the office judgment, in the suit in which bail had been required. In the other suit, there was *no*plea filed, or appearance entered, except that, on the 30th of May 1804, the defendant William, in proper person, came and acknowledged the plaintiff’s action in both suits ; whereupon, judgments were entered ^“against the defendants,” in each instance ; and executions were issued accordingly.

At the May Term 1812, of the Superior Court of law for Prince William County, a motion was made by Thomas Wrenn, to that court, to set aside these judgments, as having been entered against him “by a mistake of the clerk.” But this motion being overruled with costs, he obtained a writ of supersedeas from this court.

Stanard, for the plaintiff in error,

relied on Gordon v. Frazier and Cosbie, 2 Wash. 130, as a case in point, shewing “there is no doubt but the court may amend upon motion, where a mistake is committed by their clerk.” In that case, the judgment was entered in the order book, and signed by the judge ; yet it was corrected afterwards. If the error committed in this case cannot be corrected on motion, what is the condition in which Thomas Wrenn, or any other man, maybe put ? The first intimation he had of such a suit was by an execution issued seven years after the judgment. The court never makes such inspection of the process as would enable *176it to prevent the clerk from committing an error like this.

Nicholus contra. Admitting the process was never served upon Thomas Wrenn, he had a right to appear to the action. Both the defendamts gave special bail, and pleaded jointly. Afterwards, William Wrenn came forward, and acknowledged the plaintiff’s action. This was a waiver of the plea altogether ; it being joint; and judgment thereupon was properly entered against both.

However, (be this as it may,) the court had no right to correct the error.(a) If there was any error in this case, it was an error of law ; not of the clerk, but of the court ; being an inference by the court from the proceedings, that the joint plea having been waived by one defendant, judgment ought to be entered against both.

The case of Shelton v. Pollock & Co. 1 H. and M. 423, illustrates the distinction as to what shall be considered a clerical mistake. Here, it was not a proceeding in the clerk’s office, but entered in the order book and signed by the judge.

The case in 2d Washington was not like this. The error complained of in that case was in the judgment of the court in form only; being in substance committed by the clerk; because the act of assembly furnished the rule by which the clerk was to enter up the judgment.(b)

Another objection, which ought to be conclusive, is, that more than five years having elapsed since the date of the judgment, it is too late to correct it on motion.

Stanard in reply.

The counsel on the other side rests the position, that Thomas Wrenn was in fact a defendant in this cause, on the circumstance that there is in the record a recognizance in which the person acknowledges himself special bail for William and Thomas Wrenn. But there is no proof that Thomas had any agency in this. Any person may enter into a recognizance of special bail, of his own mere motion, without the knowledge of the person for whom he undertakes to be bail. The act of the clerk, in entering an appearance, is not an act superintended by the court. In fact, Thomas Wrenn never did enter his appearance. No writ was ever served upon him ; and, according to the record, none was ever authorized. Every thing in the record shews that he never was a defendant.

The erroneous judgment of the court was occasioned by the previous error of the clerk, in stating the plea to be joint, when only one had appeared. It was an error arising from circumstances not in the view of the court when they rendered the judgment.

If Thomas Wrenn had known, before the five years were out, that there was such a judgment against him, he could have corrected it by supersedeas ; on the ground of its being a judgment against two, upon the confession of one, which is clearly erroneous. After the five years had elapsed, his only remedy was by motion.

*March 20th, 1815,

*

The principa] case was cited in Com. v. Winstons, 5 Rand. 567; Garland v. Marx, 4 Leigh 321, 323.

(1)

 Note. That the judgments against both defendants oil the confession of one, were erroneous, notwithstanding the plea was joint. See Ward v. Johnston, *1*Munf. 45. — Note in Original Edition.

(a)

 Halley v. Baird, 1 H. and M. 25.

(b)

2 Wash. 133.

the president pronounced the court’s opinion.

The court, without deciding that this case is within reach of the doctrine laid down in the case of Gordon v. Frazier, in 2d Washington, is of opinion, that the facts in the record sufficiently prove that the appellant was a defendant in both actions. The only proof to the contrary is the endorsements on the writs, that they were not to be served on him. The declarations, which are presumed to have been drawn after the issuing of the writs, both 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; whether rightfully or not, (admitting him to have appeared as a defendant,) it is not now, upon motion, proper to decide. The court is therefore of opinion that the judgment of the Superior Court be affirmed.