#### Wilson *v*. Myers and others.

From Beaufort.

A petition was filed against several defendants, complaining of an in. jury done to lands by a mill pondj a trial was had and verdict taken for the petitioner, and judgment against all the defendants: cne of the defendants was dead at the time of judgment, and a writ of error was brought for this error in fact. On the return of the writ, a motion was made below to amend by suggestion of the death *nunc pro tunc,*&c. The motion was allowed on payment of costs, and the writ of error dismissed. On appeal to this *Court*— Held, that the amendment had been properly allowed, for it would have been at the trial a matter of course.

The injury arising to adjacent lands, by the overflowing of the waters of a mill pond, is a tort; although the statute has given a new remedy for it, it has not altered its nature.

This was a petition filed in 1816, in Beaufort County Court, under the act of 1809, against several defendants, complaining that the mill dam of the defendants *74caused the lands of the petitioner to be overflowed; and prayed a writ to the sheriff commanding him to summon a jury to meet on the premises, inquire what damages petitioner had sustained, and assess the amount to be paid annually by defendants to the petitioner. In 1820, at the spring term of Beaufort Superior Court, a trial was had at bar, when the jury assessed the damages of the petitioner to loL annually for five years, and it was entered upon the record, *“*let judgment be entered accordingly.”

In July, 1820, *Myers,*one of the defendants, applied for a *supersedeas*of this judgment, and stated on oath, that before the verdict of the jury was rendered, and the judgment thereon pronounced, *Lucy Blount*and *Louisa Worthington,*(wife of *Joseph W. Worthington,)*who were two of the defendants to the petition, were dead; and that no suggestion of the death of either was to be found of record in the proceedings in the suit: and farther stated, that notice had been given the petitioner of an intention to apply for a writ of error on said judgment. *A*super-sedeas was granted, returnable to the spring term, 1821; at which.term the petitioner appeared and filed an affidavit, setting Forth that the judgment complained of was not rendered by the Court on motion of his counsel, nor entered by his counsel, but by the *clefk*as a matter of course, on the finding of the jury; that he did not wish to Jháve a judgment against any defendant who had died pending the suit, but only against those who were living when the issue was tried; and prayed to be allowed to aniend his judgment so as not to affect the representatives of those who died. The Court refused to permit the amendment, and allowed the writ of error. *Louisa Wor-thington*died in November* 1817, and *Lucy Blount*in February, 1818. At Fall Term, 1825, Norwood, Judge, presiding, an entry was made oA the record in these words: at the present term, the motion made at spring term, 1821, to amend the original record, by suggesting *75the death of *Louisa Worthington*and *Lucy Blount,*as if it had been done at spring terra, 1818, was reviewed,* and it was now ordered that the entry of record of spring term, 1821, be rescinded; and it was farther ordered, that the amendment be made as prayed for on payment of all the costs of the writ of error. The terms were accepted by the defendant in error, who paid the costs into the clerk’s office, and the amendment was thereupon made, and on motion made after the amendment, the writ of error was dismissed; whereupon the defendant appealed.

*Gaston,*for the appellant. —

The Court improperly allowed the amendment.

1. This amendment was not allowable, had this been *an ordinary suit.*The general principle is, that after judgment is given and enrolled, no amendment is permitted in any subsequent term. (3 *Bl. Com.*407.) According to our established practice, when a judgment is not entered in form, *that*must be considered as entered which corresponds with the allegations and findings. The judgment here; then, was, that *all*the persons named as proprietors of this mill should pay 15Z. for one year’s damage before the filing of the. petition, and the same sum annually for four years thereafter. The amendmentpray-ed, is by suggesting the deaths of two previously to verdict, to make the verdict or finding against the survivors only, and the judgment one against them only.

When the term is past and judgment recorded, Courts will amend no farther than is directed by the statutes of amendment. (1 *Tidd*658. 660. 2 *Ibid*862.)

With regard to statutable amendments, the rule is, that *misprisiotis of clerks and officers of the Court*are amendable in all cases; but mistakes and omissions of the party, his counsellors and attornies,. are amendable accordingly as the.statutes make them matter of form or substance, and this will appear through the whole thread of the proceedings. *(Gilbert C. B.*117. *new*edition.) And that is *76of substance, without which the judgment hath not sufficient grounds to warrant it. *(Ibid*121.)

Even the omnipotent act (as it is termed) of 16 & *17 ojMries*2. excepts matters which are of the right of the matter of the suit, or whereby the issue or trial is altered. *(Bac. M.*<• *Amendment” B.)*And wherever the issue is changed, no amendment is allowable. (2 *Wils. 147.*148.)

The omission here is that of the *party;*he,did not even inform his attorney: it was no negligence of the clerk, or attorney, or Court, but his own inattention, and his affidavit *conceals*whether he knew the. fact or not.

The amendment, too, is *oí substance;*it is to change a judgment against seven, into one against five; to alter the issue, or finding of the jury, what the proprietors, who had been all before named, should pay annually; and that too where it is doubtful whether those against whom it is rendered can call on the others for contribution; it. is of a fact on which the new judgment is to stand.

But farther, it is also a rule that even when amendments are allowed for mistakes of clerks and other officers, there should be something *to amend by. (1 Tidd*661. 2 *Ibid*822, 3. 1 *Sellon*401. 2 *Ibid 457.*1 *Term It.*782.)

0ur statute of amendments introduces no new rule with respect to amendments after judgment. The first two clauses apply only to matter of form, and the third is evidently restricted to amendments in the progress of a cause. Upon this principle our Courts have uniformly acted. *Parnell*v. *M-Crawley, (21-Iayw. Rep 177.) Baker*V. *Moore,*(2 *Law Rep.*637.)

But if this amendment might have been allowed in an ordinary suit; then,

2. It was not an admissible amendment in *such a suit*6S *the present.*The practice of -suggesting the death of one of several defendants arises under statute 8 & 9 *Will.*3. This statute permits it, only where *the cause*of action as oxúginally preferred survives against the rest, *77(2 *Tidd*848, 9.) Here it has not so survived; for, by tire petition, by the judgment, compensation is demanded, not for the *tort done*when the suit was brought, but for the annua! damage for five years subsequent to the suit, and part subsequent even to judgment. Perhaps the plaintiff might, under the provisions of the last section of the act of 1809, have taken a judgment against the survivors for one year’s damage prior to the suit; because, as tort-fea-sors, each was liable for the wrong then done. The act, however, as it respects the annual compensation, clearly contemplated that it should be received of all the owners: there is no provision made in the case of the death of any of the parties: it is an anomalous proceeding, to be regulated by itself, and is not governed by the rules applicable to ordinary suits. (3 *Murph. Rep.*254.) Either, the action abates, because the entire cause does not survive, or the inquiry should be, what compensation that portion of the owners should pay against whom only-the proceedings are carried on.

But, again; one of the defendants surviving, and against whom the amended judgment is to be enforced, is not a person against whom the cause survives at all. *Joseph Worthington*is a party defendant, and there is no suggestion made from which his liability can at all appear: he was the husband of *Louisa Worthington*when suit was brought; was he so a year before? After her death had he any interest in the lands? He is not liable for the tort previously to his marriage; nor can he be called on to make compensation for future injuries after her death. Nor can the judgment be vacated as to him, and sustained against the others; it is entire, and if wrong against him, must be revoked *in toto.*(12 *Johns. Hep.*434. 14 *Ibid*417.)

3. Amendments are never made, except to subserve the incontestible merits of the case. If here the action can be maintained against the survivors, it is unjust that they should be made *soldij*responsible for the *whobe'*be*78nefit which they, *in common with others,*receive from plaintiff’s property. Farther, it is unjust that *Wilson*should be responsible for the use which *others,*and not ],jmse¡[; {iave of plaintiff’s property. By recalling the judgment, no injury is done to plaintiff, for the cause will only be placed in the state in which it was *up*to the error committed. (11 *Johns,*460.14 *Hid*412.)

But if these views are erroneous, and it was right to permit the amendment, still it was wrong to dismiss thewrit of error.

The Court should have permitted the amendments and ordered a new venire. When amendments are allowed on extraordinary occasions after judgment, it is always on condition that the opposite party should have a lair opportunity of being heard on the case, as he would have been before the issue found. (1 *II. Bl.*238.)

The defendants should have an opportunity of showing that some of them were not at all liable, and others not for the whole. They should have an opportunity of showing that *they*were not proprietors one year before the filing of the petition. They should have an opportunity of moving in arrest.

*Hogg,*for appellee. —

The authorities relied on by the plaintiff from the books of practice, *Tidd, Sellon,*3 *Blk. Com.*and *Gilberts Com. Plac.*show only that misprisions of the clerks and officers of the Courts are not, by the British statutes of *amendment,*amendable, unless there be something to amend by. The error complained of in this1 suit, was not an omission of the clerk, but of the party; and is, therefore, not helped by the statutes *oí amendment*technically so called, but by those *oí Jeofail,*and is within the terms of the 32 *Hen.*8. *cli.*30. which directs the justices to proceed to judgment, any *mispleading,*&c. *or Jeofail, or any misjoining of the issue, or any other default of negligence of any of the parties,*&c. had to the contrary notwithstanding, and *that the judgment shall**79*stand, and shall not be reversed by writ of error.*Accordingly, either in virtue of this act of parliament or by the common law, the very amendment moved for in this casé has been allowed.

One of two plaintiffs died before interlocutory judgment; the other plaintiff proceeded to judgment without suggesting the death, and issued a *ca. sa.*on which the defendant, was arrested; and on motion to discharge the body, the plaintiff moved to be allowed to amend by suggesting the death on the roll, and making the *ca. sa.*conformable thereto, and the amendment was allowed without costs. *Newnham*v. *Law,*(5 *Term*577.')

Suggestion of the death of one defendant allowed, after error brought to reverse judgment. *Hamilton*v. *Holcomb,*(1 *Johns. Cases*29. *S. C. Coleman*61.) *S. F. JDu-moiul*v. *Carpenter,*(2 *Johns.*184.) .

Suggestion of death allowed after notice of error, upon affidavit that the suggestion was ordered by the party’s attorney,-but neglected by the clerk. *Pannel*v. *JIT Craw-ley et al.*(2 *Hay. 177.)*

It is objected to the case from *5 Term. 577.*that *it*was upon an interlocutory judgment. The objection is a singular one. The uniform leaning of Courts of Law is, to sustain verdicts, and with good reason. The presumption is in their favour, because they have been obtained in open court upon a trial, where the adverse party, aided by counsel, was present to attend to his interest, and to see that the proceedings against him were regular and the proof sufficient. So thoroughly had this notion obtained, that all the statutes of *Jeofail*antecedent to 4 & 5 *Jinn, ch.*16. extend only to remedy defects in the proceedings in suits in which there has been a verdict; and the enactments usually begin with the words, “that if any verdict of twelve men shall be given,” &c. The statute of 4 & 5 *Jinn*is made for the express purpose of extending all the statutes of *Jecfail*to judgments upon *con<-fession, nil diát,*and *non mm informaius.*The case cited, *80therefore, is the stronger, that it is upon an interlocutor ry judgment. In *Newnham*v. *Law,*the proceedings were *ex parte,*and he who claimed advantage from them mights Up0n ve,.y rjg0rous practice, have been held to great exactness; But in the present case, the appellants, the defendants in the original suit, submitted the issue to a jury, and took their chance of a favorable verdict; and when they are disappointed in the result, ask of the Court to *reroerse*the judgment upon a defect in the record, which does not at all affect the justice of the judgment.

It is said, however, that if the amendment could be ah lowed in suits at common law, it ought not to be allowed in this proceeding under our act of 1809, *ch.*773. JVfew *Rev.*The proceeding under the act of 1809, is strictly in tort. The remedy at common law, for the tort com-' plained of by the petition, was an action on the case, and survived against any of the trespassors. By the stat. of 8 & 9 *Will.*3. *ch.*11. and by the better opinion, by the common law, the death of one of the defendants pending the action on the case might have been suggested on the roll» and the plaintiff might have proceeded to judgment against the survivors. The evil under the common law was, not that one trespasser might be sued, or that the action would survive, but that the owner of a mill might be harrassed by frequent suits, whereby *small*damages might be recovered. The remedy by petition was interposed by the act of 1809, whereby it might be ascertained if the damage was less than lot. per annum, when the petitioner was compelled to .take his judgment for five years. If the annual damage exceeded 10Í. he might elect to proceed at common law, and take a judgment for one year only, or he might take his judgment for five years. The parties remained as at common law, and the plaintiff might proceed against one or more trespassers. If he sued several and one die, he may suggest the death under 8 & 9 *Wm. 3.*and proceed to judgment. But the objection that the action does not survive, will not avail here, *81i'or in a writ of *coram vobis,*the judgment cannot be impeached for error in *law.*The plaintiff in error can assign errors in *fact only;*because the judgment being of the same Court, is, by necessary intendment, good in law. It is not the inquiry whether the judgment be valid in itself, but whether the suggestion of the death of one defendant can be made after judgment, so as to render the proceedings before judgment regular.

Error *coram nobis*lies only for misprisions, and for error in fact, and for detects in the proceedings antecedent to the judgment. *(Bac. Jib.*I. 6.) The inquiry is, whether the misprision of the clerk, or the defect in the proceedings be fatal, or whether it be immaterial, or whether, if fatal, it be amendable; which are matters altogether independent of the question whether the judgment of the Court be valid in law, or erroneous; for judgment can be put in issue only by appeal, or writ of error from a Superior Court having jurisdiction by writ of error; and even in writs of error from a superior to an inferior Court, errors in law and in fact cannot be assigned together. *(Ibid,*letter K.)

The case of *Baker v. Moore,*cited from 2 *Law Rep.*637. was"on a motion to alter the verdict of a jury so as to increase the damages, of which there is no precedent.

There is another point for the defendant in error. The amendment is actually made in the original suit by the Court below, and the appeal is on the writ of error. There is now no error in the proceeding, and the Court cannot now disallow the amendment, having no jurisdiction to reverse the interlocutory order of the Superior Court giving.-the plaintiff in the original suit by' petition leave to amend; there being no appeal to this Court from the judgment in the suit by petition, but from the judgment in the writ of error only.

Henderson, Judge,

delivered the opinion of the Court

The statutes of amendments and of *Jeofails,*do not af-*82feet this question; it depends on the principles of common Jaw alone. As a general, rule, it is unquestionably true, ^ that no act of the Court, as contra distinguished from the ac{- 0f officers, or the parties, can be allowed or amended, but during the term at which it was done. During the term the record is said to be in the breast of the Judge; after it is over, it is upon the roll. But this rule applies to such amendments as call into action the judgment or discretion of the Court, and not to such as are a matter of course, in such oases the reasons of the rule no longer operate; for as much as the law confides in the integrity of the Court, it admits a possibility of its being corrupt, and therefore guards it from temptation.

The case in *5 Term*is an authority for this amendment,, and there could not be one more in point; and Lord *Kenyon,*in a few words, gives the reason. *It is a matter of course;*the motion, if made at the proper time, could not be refused by the Court. There, can be no reason for not permitting it to be entered now for then, for it produces the same, and no other effect, than if it bad been then entered. Upon its being entered, the error in fact assigned in this writ of error no longer exists. The judgment cannot, therefore, be reversed for error in fact. Whether there be error in law7, cannot be inquired into by virtue of the present writ of error; but if it could, I think that there are none; for although the statute has given a new remedy for injuries arising from mill ponds, the injury is still the same in its nature; it is a tort, in which all or any one or more are liable for the whole injury. It therefore survives against the survivors. JN or is it any objection that some of those who did the injury were mere temporary owners, and that their interest may have since ceased. If their interest was limited, it. should have been offered (if indeed it could have affored any objection) when the five years’ judgment wras about to be entered up. If their interest were then uncertain, and have since determined by casualty, their remedy is by *audita*querela, or *83some remedy in the nature thereof. If they are entitled to any relief, at.any rate it will not justify the Court, upon a bear suggestion that such may be the case, to reverse the original judgment. The writ of error must be dismissed, and

.'Judgment affirmed-.