#### *Bent v. Patten, &c.

December, 1821.

Clerical Error* — What Constitutes — Interest on Judgmentt †— Correction in Appellate Court. — when an action is brought on a note, which was executed at the time when 5 per centum was the legal rate of interest, upon which the defendant acknowledged the action for the principal with interest from the date of the note; on which acknowledgment a judgment was rendered for the principal, with interest at the rate of six per centum per annum this is not a mere clerical error, but one which can only be rectified by an appellate court.

Statute of Jeofails ‡— Construction.!:—The proper construction of the 108th section of the act of jeofails1 Rev. Code. 512.

Patten and May brought an action of debt in the Superior Court of law of Frederick county, against Bent, on a note executed by the latter to the former, for $384, with interest till paid. The note was dated, June 2_lst 1796; at which time the legal rate of interest was only 5 per cent. On the 7th day of October, 1819, the defendant (Bent) appeared and acknowledged the plaintiffs’ action against him, for the sum of $384 with interest thereon from the 31st of June, 1796, until payment and the costs. The record proceeds tosíate “Therefore it is considered by the court that the plaintiffs recover against the said defendant the said sum of $384 with interest thereon to be computed after the rate of six per centum per annum from the said 31st day of June, 1796, and their costs by -them about their suit in this behalf expended; and the defendant in mercy, &c.”

Bent appealed to this court, assigning *21as error, that a higher rate of interest was allowed by the judgment, than the law authorised at the time the note was executed.

Gilmer, for the appellant.

That there was error in entering the judgment for six per cent, on a contract made at a time when by law all contracts bore only 5 per cent, interest, must be ad-' mitted by all. The only question to be considered is, whether *such error is merely clerical, and therefore capable of correction by motion, or by writ of error coram vobis; or whether it is a judicial error, which can be corrected only by appeal.

The distinction between judicial and clerical errors he supposed to be, that the latter were mistakes capable of correction by a simple reference to some other part of the proceedings, as misrecital of sums, miscalculation, &c. Judicial errors, on the other hand, consist in the improper application of the law on admitted facts. In this case, there was nothing in the record by which the clerk could safely correct the judgment. The note on its face only purported to bear interest; it did not fix the rate: reference to it, therefore, could not decide the question, whether the rate was 5 or 6 per cent. It was then not a clerical error; for, there was nothing in the papers by which it could be controlled and corrected.

It required a decision of the question, which law was to govern the contract, that existing when it was made, or that enacted after its execution. This is a pure question of law. The judgment being on confession does not alter the case. That confession says “with interest,” which must be intended “legal interest;” what was legal interest then, recurs upon us, and that, was a question of law. There was then error in law in the decision below, and an appeal was the proper method for correcting it.

Tucker, for the appellee.

The error complained of in this case, was merely clerical. The defendant came in person, and acknowledged judgment for the debt with interest from June 1790. On this confession, it was the duty of the clerk to enter the judgment for interest at the rate allowed in 1796. The error is, therefore, his, and not that of the court, which when there is a cognovit actionem, is not called on to exercise *its judgment. 'Phis is what is meant by judge Pendleton in Gordon and Frazier, (a) That case is much stronger than this. Here the judgment being confessed with interest from a particular date, the act of Assembly furnished the rule by which the judgment was to be entered up. But in Gordon and Frazier, there was something more judicial in the matter: for, the error assigned was in not noticing the memorandum on the penal bill, and it was questioned by counsel in this court whether it ought to have been noticed or not.

If then this error be merely clerical, it could have been corrected in the Superior Court by motion or writ of error coram nobis, (b) It is an error in fact, which cannot be corrected by writ of error before a superior tribunal, or by a supersedeas which is but a substitute for it.

It would indeed be oppressive, if the defendant, instead of correcting the error by motion below, should burden the appellee with the costs of an appeal here.

But there is no longer room to doubt of this matter. The act of assembly, .1 Rev. Code 1819, page 512, provides “that where there is a mistake in a sum and any thing to correct by, the court or judge in vacation shall amend upon notice to the opposite party.” So, that this mistake in the amount of interest, might have been amended on Bent’s motion, either in the court below or by order of the judge. This law was made to prevent vexatious appeals for trivial errors, which might be corrected without difficulty.

But, if these points be against me, I offer for the appellee to release the excess under the provisions of the law, 1 Rev. Code 513, § 110, and ask such judgment as ought to have been given in the court below. In that event too, the appellee should have his costs: for, otherwise, that section of the act of assembly will be inoperative; since this court always could correct the errors of the courts below, *by rendering such judgment in cases of this kind, as they ought to have rendered. Besides, as the appellant might have been relieved otherwise, we ought not to be taxed with the costs of this proceeding. Thus, this court refused the plaintiff in the writ of error co-ram nobis, his costs, because he did not pursue the less expensive course of a motion. (c)

As to the other errors, they are cured by the confession of judgment.

Gilmer, replied.

In the case of Gordon v. Frazier, there was wherewithal safely to correct upon the paper upon which the action was brought. It was part of the agreement, that the^ tobacco should be of a particular inspection; the clerk in entering the judgment should surely have followed the agreement. Here he has not followed it, for it was in effect for 5 p. cent., though not so expressed; and there is nothing on the note to shew whether it was to be entered for 5 or 6 per cent.

The statute relied on, cannot mend the appellee’s case. The 108 §, page 512, applies only to “mistakes, miscalculations and misrecitals, of sums of money &c.,” which can safely be corrected by other papers in the cajrse. There is here neither mistake, miscalculation, nor misrecital of the *sum due:*but a mistake in the law which shall govern the contract: neither is there any paper by which the error can be safely corrected.

The 109 § applies only to particular bonds taken by sheriffs in distress for' rent &c. and as to the release of the excess proffered under the 110 §, that section is by express reference confined to the cases *22mentioned in the preceding section, which is shewn to have no application to this case.

**The error is in the court then, and the statute has provided no means of correcting it but by appeal: the judgment must be reversed.

*

Writ of Efror Coram Nobis — Where It Lies. — A writ of error *coram nobis*lies where some defect is alleged in the process or the execution thereof, or some misprision of the clerk, or some error in the proceedings arising from a fact not appearing upon their face, as when judgment is rendered against a party after his death, or who is an infant or feme covert. Richardson v. Jones, 12 Gratt. 55, citing principal case.

†

Judgraent — Interest.—Where a bond by its terms bears interest at three per cent, per annum from date, a decree for the payment thereof should be for the aggregate sum due, the interest being computed at the rate of three per cent, to the date of the decree, and then the decree should provide for the payment of interest thereon at the rate of three percent, until paid. A decree providing for interest at six per cent, on such aggregate sum is erroneous. Headnote to Pickens v. McCoy, 24 W. Va 344, 353. The principal case is cited in support of the holding.

When an action is brought on a note executed while five per cent, is the legal rate of interest, a judgment on such note with interest at six per cent, the legal rate at the date of the judgment is erroneous : the contract fixed the rate of interest the debt should bear until it was paid. As so holding, the principal case is cited in Shipman v. Bailey 20 W. Va. 146.

See further, monographic *note*on “Interest” appended to Fred v. Dixon, 27 Gratt. 541; mono-graphic *note*on ‘ Judgments” appended *to*Smith v. Charlton, 7 Gratt. 425.

‡

Statute of Jeofails — Construction.—The principal case is cited on this subject in Com. v. Winstons 5 Rand. 567; *Compton*v. Cline, 5 Gratt. 137,139, and foot-note; Shipman v. Fletcher, 91 Va. 489, 22 S. E Rep. 458.

The principal case is distinguished in Eubank v. Rail, 4 Leigh 320.

(a)

2 Wash. 135.

(b)

2 Wash. 130.

(c)

2 Wash. 135.

JUDGE COAETER.

This is a suit on a note executed a short time before the passage of the act changing the rate of interest from 5 to 6 per cent. The defendant confessed judgment for the debt and interest, without stating the rate, and the clerk, by mistake, in entering the judgment, gave interest at the rate of 6 per cent. A supersedeas was awarded by a judge of this court, since the late act of assembly authorising amendments of judgments, by application to the court below, at a subsequent term, '“or to the judge in vacation. Two questions therefore arise:

1. Whether this is a mere clerical mistake, at all times amendable on motion before the court where the judgment was entered, and consequently perhaps, not a case proper for this court.

2. Whether, if it is not such a clerical error, it is nevertheless such an error as might and ought to be amended, under the late act of assembly.

I think it is a clerical error, and was always amendable in the court below, on motion.

In the case of Gordon v. Frazier,(d) the suit was on a tobacco bond, on which credits were endorsed, and on which also there was a memorandum signed by the obligee, agreeing to receive tobacco of another inspection than those mentioned in the body of the bond. When the cause was called for trial, the plea was withdrawn, and judgment entered by nil dicit, without either giving the proper credits, or noticing the other endorsements mentioned on the back of the bond. This was considered a clerical error as to- both omissions, amendable on motion.

The act authorising judgments to be entered for the principal sum due, with interest thereon, says nothing *about credits; yet under the equity of that statute, it has always been the practice and duty of the clerk to enter the credits; and so I presume it was considered his duty, in this case, to notice the endorsement relative to the other inspection, though that was a question of law of more doubt than the present, as it appears that the district court itself erred as to it on the writ of 'error coram nobis, which was brought in that court to correct those errors. If it was the duty of the clerk under a sound construction of the act, to notice those things on entering the judgment in that case, it would seem to me to be, a fortiori, his duty to notice the proper rate of interest in this case, the law expressly saying, that the judgment shall be entered for the principal sum due with the interest. I presume, that neither in that nor in this case, there would have been any doubt as to the nature of the error, and the power of the court to correct on motion, had they both been office judgments; but it was contended there, as it is here, that the error was in the judgment of the court. To this the president of the court answers: “In form it is so, and though the proceedings, as drawn up by the clerk, are read over in court, and where there has been a trial, the same are then corrected, yet this is not done when a judgment is confessed, as it was here, for in such case the act of assembly furnishes the rule by which the clerk is to enter up his judgment.”

“There is no doubt but the court may amend, upon motion, where a mistake is committed by their clerk, if there be, as in this case there was, something to amend by.” The thing to amend by there, was the bond with its endorsements: the thing here, is the note bearing date before the change of the rate of interest.

If this was sufficient to amend by, in case of an office judgment, I cannot see why it shall not be equally proper to amend by, after confession of judgment, if that is no more the judgment of the court, as I understand to be clearly decided by the above case, than an office judgment.

*The case of Brooke v. Roane,(e) does not, in my opinion, overrule the above case. That was a motion on a delivery bond taken a year after the change of the rate of interest. The case is very shortly reported; but I collect from it, that the execution was on "a judgment bearing 5 per cent., but that in consequence of the delivery bond being taken’’ after the change, and being in the nature of a new judgment, the district court thought it ought to bear six per cent. Whether there was a bill of exceptions stating this point, does not appear from the report; but be this as it may, there must have been a trial and an inspection of the bond and execution by the court, even if the defendant did not appear to make defence. This court reversed "the judgment, and entered it for 5 per cent., “considering the bond not as a new contract (in which the concurrence of both parties is necessary, but as a measure legally imposed on the creditor in pursuit of his execution on his former judgment, which bore an interest of 5 per cent, only.”)*

But suppose this a case of mere clerical error, amendable elsewhere, what ought to be done with it here, should the appellee not be considered as entitled to the benefit of the late act of assembly?

We cannot affirm the judgment as it now stands; because that would preclude an amendment below. If we reverse, then we take jurisdiction of a case in which the party had remedy elsewhere, in the nature of an original remedy, and I would assimilate it to a case of an ap*23plication to this court to quash an execution for irregularity, not preceded by a motion for that purpose in the court below; and I should therefore incline to think, that the correct course would be, to dismiss the supersedeas as improvidently awarded.

*This difficulty, perhaps, may be obviated by the provisions of the late act of assembly. That act, I consider, extends as well to previous, as subsequent judgments.

In cases of clerical errors, it gave no new remedy by motion in court; but gave a remedy by motion to the judge in vacation, and in either case makes such amendment so far a part of the original judgment, as that, by being certified to this court, on certiorari, we can affirm such amended judgment; thereby giving damages and costs against the party, who has thus improperly resorted to this tribunal.

It may be said, however, that the appellee here has not brought himself within the provisions of this act by having procured such amendment, and applying for a certiorari.

I consider, however, that this act is not only remedial, but highly beneficial, and ought to be applied, according to its spirit, wherever it can: and as this is the first case arising under it, and as a supersedeas was awarded by a judge of this court, which may have been the first notice the party had of this alledged error, I would excuse him for not applying, in the first instance, to the court or judge below, who might perhaps have felt a delicacy in proceeding, as a supersedeas had been awarded by a judge of this court: a very prudent delicacy indeed, if there is any doubt of the propriety of my opinion. I should, therefore, after intimating my opinion that it could be so corrected, give him time; before a final decision, to make that application.

3. But if I am wrong in believing this to be *a-mere*clerical error, does not the act in question extend to errors not merely clerical?

Suppose the case before us was not that of Bent v. Patten, but of Gordon v. Frazier, &c.; that it had been a judgment since the act, and not by confession, but after a verdict; and that the clerk, in entering the judgment, had been guilty of the same omissions which took place in *that case; this would not be a clerical error, being after a trial; but it would be clearly an oversight or mistake, both by the clerk and the court, and there being among the papers a bond by which this mistake could be safely amended, the case would be within the provisions of this act, and I would give the party time, as above suggested, to avail himself of it. But, if I have succeeded in shewing that the note in this case is a paper in the record by which an office judgment could be safely corrected, even if I have failed in shewing it is a clerical error; but admitting that the case of Gordon v. Frazier has been overruled as to that point, yet if that case could now be corrected, after verdict, I cannot perceive, under a liberal construction of the act, if not under its very words, this may not. It is true, that the act, in reciting the mistakes occurring in the courts, speaks of those arising from “miscalculation or misrecital of any sum or sums of money, tobacco, wheat, or other such thing, or of any name or names;” yet the very use of the words “or other such thing,” shews, that every mistake was not intended to be set out; and even if those words were not there, it is not necessary for me to refer to that numerous class of adjudications which extend remedial statutes to such cases as are equally within the mischief. We all know, that mistakes of this kind do occur; and the delays of justice, and costs attending their correction in the appellate courts, are mischiefs which have been long felt. It is therefore provided, that “if 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 amended, &c. Here is a mistake, and here is a note by which it could be safely amended, had it be'en an office judgment. It may be said, that under this act it is not a mistake in a sum of money; but it is one in the rate of interest, and that is surely a mistake very much of the like kind. But *suppose there had been credits endorsed on this note, and the clerk, as is the correct course, as decided in this court, (f) had calculated interest at (f) instead of 5 per cent, and had taken the credits from the principal and interest, and had thus shewn a sum due, at the last payment, which we will say was made since the six per cent, law, and had entered judgment for that balance, with legal interest from that time, without stating the rate; this, on an execution would, of course, justify the sheriff in demanding six per cent. Here would be a miscalculation, I suppose, coming within the very words of the statute, and might be corrected as to that; and if so, might it not be corrected also as to the rate of interest? Suppose this very case had been corrected by the judge, and after such correction the appellee had brought it here, would we reverse because the judge had no right to amend either in court or out of it? If we did, what judgment would we enter? Precisely the amended judgment, so as to restore the case to the situation it was in when the party appealed, and shewing he was not injured thereby. The note would be sufficient for us to enter such judgment by, as the court below ought to have entered; but not to authorize that court to correct by.

This court surely ought not to be burthened with the correction of such cases as this, contrary, in my opinion, to the plain intention of the law, especially when it has been solemnly decided that even errors in cases collaterally affecting the freehold and franchise were not consid*24ered by the legislature of sufficient importance to interfere with our great and legitimate duties.

(d)

3 Wash. 130.

(e)

1 Call, 205.

*

On examination of the record in this case, I find the defendant appeared by attorney; of course there was a defense, and the execution on which the delivery bond was taken, was for a debt bearing 5 per cent, interest; so, that the future rate of interest was clearly before the court. — Note in Original Edition.

(f)

4 Munf. 437.

JUDGES CABELL, BROOKE and ROANE,

concurred in the following opinion, which was delivered by JUDGE ROANE, as the opinion of the court:

This is an action of debt on a note, brought in the Superior Court, by the appellees against the appellant. *The declaration states that the note was made on the 21st of June, 1796, at Alexandria, within the county of Frederick, by which the appellant promised to pay on demand the sum of $284. The note is copied into the record, and also has several credits endorsed on it. Issue was joined on the plea of nil debet. Afterwards, the defendant came into court in his proper person, and acknowledged the plaintiff’s action for $284, with interest from the 21st of June, 1796; on which acknowledgment a judgment was rendered for $284, with interest, at the rate of 6 per centum per annum, from the 21st of June, 1796, till paid. The confession, on which this judgment was founded, left no fact to be decided on as to the amount of the debt acknowledged, and no computation or calculation to be made by the clerk. _ It specified $284 as the principal sum for which the judgment was to be rendered, and with regard to the interest, it did not agree that an interest of 6 per cent, was to be allowed, but only that interest was to be computed on the said sum; that is, as we understand it, the interest which is allowed by law. What interest is allowable upon any contj-act, is always a question of law; and it is sometimes an intricate question, as it respects the time, or the place of the contract. In this case it was undoubtedly a question of law, as both the acknowledgment of the appellant and the declaration referred to by it, shewed that the contract arose on the 21st of June, 1796; after which time, the rate of interest was altered by a general law, from 5 to 6 per centum per annum. When, therefore,'the question of interest was submitted in the general terms stated in the confession, that confession combined with the intermediate alteration of the law as aforesaid, submitted, in effect, to the court, the question of interest, as it were by a special verdict. It was submitted to be decided, whether the law of the time of the contract, or that of the date of the judgment, in relation to the rate of the interest, was to govern; or in other words, whether an interest of 5 or 6 per cent, per annum *was to be allowed. The court decided in favor of the latter, and we are all of opinion that that decision was erroneous. If this question thus decided, be a legal question, and as such, proper for the decision of the court, rather than of its subordinate officer 'the clerk, it is not the less submitted to it by the general acknowledgment now before us, than if it had in so many words stated that it was submitted to the court to be by it decided. It stands so submitted under the principle ad questiones legis respondent judices. This maxim supplies the place of a special reference to the court in this particular. This question of law was, therefore, referred to the court, and was decided on by the court, and if so, the case of Gordon v. Frazier and Cosby, tells us that it could only be corrected by a superior tribunal. Independent of the terms of the judgment before us, whereby it is considered that an interest of 6 per centum per annum is to be paid, that question was surely decided on by the court which alone was submitted to it, and as to which the materials for a just decision were furnished by the declaration referred to, and by the confession. That question was not decided on by the clerk, which was not submitted to his judgment, and which involved a legal enquiry proper for the adjudication of the court. Those only are clerical errors which are made by the clerk, which depend only upon a comparison and calculation to be made by him, and may be safely reformed by reference to other statements contained in the proceedings. That was the case, in Gordon v. Frazier and Cosby, even in relation to the endorsements as to the Hobbshole tobacco. In the case before us, there is no other part of the record to which you can refer, as in that case, to reduce the interest in question from 6 per cent, to 5. You can only so reduce it, by referring to the principles of law, in relation to the time of the contract.

The case of Brooke v. Roane,(g) is, in principle, decisive of the case before us. In that case, judgment was *rendered on a forthcoming bond taken after the date of the act changing the interest, upon'a contract existing before, and the judgment was for an interest of 6 per cent. In .that case, though rendered upon notice, the court had as little to do with specifying the rate of the interest, as in the case before us. In both cases it was intrusted to the clerk: yet in that case, this was held to be the act of the court, and was corrected here, upon an appeal. It was so corrected on the ground that the forthcoming bond made no new contract, and that, consequently, the former rate of interest should prevail. On the same ground, this court should now hold that the error in question was the error of the court: that this court has consequently the power to correct, and that the court below having erred in relation to the law of interest, its judgment ought to be reversed. This is a fortiori the case, in the present instance, in which the question of interest is submitted to the court, as we have endeavoured to shew, as it were by a special verdict.

In construing the 108th section of the act of Jeofails,(h) in relation to the case before us, we can never forget the great land mark before mentioned, that as to questions of law, the courts are to decide them. This principle, standing alone, would go far to restrict the words “mistake, miscalculation or misrecital” therein contained, to the standard before men-*25tinned. But it does not stand alone. By the same section, a reference is made to other parts of the record by -which these mistakes may be safely amended. These last circumstances, coming in aid of the principle aforesaid, turn the scale against the construction contended for by the appellees, in the present instance. There is no other part of this record which contains any statement of fact, by which the amendment in question can safely be made. If a correction is to be made, it can only be made by one judicial tribunal acting upon the mistaken judgment of another. Although the correction is to be rinade, under this section, by the same judge in vacation, it is only as to such corrections as can be safely made by him, by referring to other statements in the record. It was never intended to make him an appellate court over himself. It was never intended that his decisions made in open court, and upon argument, should be reversed by himself, at his own chambers, in vacation. Quoad questions of law at least, the revising courts should have at least as many lights as those courts whose judgments are to be considered.

This construction of that section is confirmed by the section immediately following. By that section (109th) the judgments are to be corrected in two classes of cases only, and those are only where, by a mere comparison of different parts of tile record, the corrections can be safely made. One of these is by pruning down the sum found by the verdict, to the standard of that demanded by the declaration. The ideas we have stated in relation to the lOSth section are thus confirmed and acted upon in rhe 109th. They are all to be taken in exclusion of those mistakes which, in their nature, are purely legal, and which therefore must go for correction to an appellate court.

As for the right to release a part of the judgment in this court, claimed under the 110th section, that is restricted to the two classes of cases embraced by the 109th section. It is so restricted by the terms “such judgment” therein used. It does not give the appellee a right to release the illegal one per cent, in this case in the appellate court.

The judgment must be, therefore, reversed with costs, and entered for five per cent, instead of six.

(g)

1 Call, 205.

(h)

 1 Kev. Co. 512.