#### *Halley’s Administrator v. Baird and Young.

Monday, October 13, 1806.

Judgment — Amendment at Subsequent Term,* — A District Court has no power or jurisdiction to reverse, alter or amend a judgment given at a former term of the said Court, which had been entered on the order book, and signed by a Judge in open Court.

{Jabeas Corpus † — Removal of Cause Thereby. — Quaere. Where a cause is removed by habeas corpus, from an inferior to a superior Court, whether the proceedings ought to be commenced de novo, or carried on from the stage at which they stood in the inferior Court?(1)

*

Judgment — Amendment at Subsequent Term. — In Gordon v. Frazier, 3 Wash. 130, the clerk entered up a judgment by *nil dicit*in the district court in debt on a bond for the payment of tobacco, without noticing a memorand um indorsed on the bond. It was held by the court of appeals that the mistake was merely clerical and amendable upon motion at a subsequent term of the district court.

In Vaughan v. Freeland, reported in *note*in 2Hen. &M. 477, the clerk entered the verdict of the jury erroneously on the order book, and entered the judgment conformably to the erroneous entry of the verdict,'and these entries were signed by the judge. At a subsequent term, the same court permitted the entry to be amended, so as to conform to the real finding of the jury. On appeal.it was held by the court of appeals, that the judgment should be reversed on the ground “that the order made for amending the record, and altering the judgment entered on the said verdict, at another and subsequent term, after the verdict given, and judgment, entered thereon, fully drawn up, read and signed by the judge in open court, was erroneous, the Said amendment, *after the term,*not being authorized by law.”

In Com. v. Winstons, 5 Rand. 646, a judgment was rendered by defaultin the general court, upon motion, on a bond due to the commonwealth; but the clerk, in entering the j udgment, only allowed interest from a date posterior to that, from which, by the terms of the bond, interest was to run. It was unanimously held by the court of appeals — consisting of Judges Carr, Green, and Cabell, — that this error might be amended upon motion to the general court at a succeeding term. In delivering his opinion, Judge Green, p. 557, said: “The cases of *Halley, etc., v. Baird, etc.,*1 *Hen.*& *M.*25. and Cogbill v. Cogbill, 2 Hen. & Munf. 478, do not conflict with Gordon v. Frazier. In the first, the disti-ict court set aside *in loto*an office judgment, which stood confirmed, and was final at a preceding term; and reinstated the suit, and sent it to the rules for new proceedings. This was not an amendment, but an annihilation of the judgment. In Cogbill v. Cogbill, the court refused to allow ah amendment, by correcting the order in the record by the minutes of the clerk, a material part of the minute being omitted in the order. But it is observable, that one of the three judges who sat in that case, dissented, and that the minutes of the clerk are not a part of the record as 4a bond is, at least to some purposes, and especially to amend by. I conclude, that the mistake in the entry of the judgment, sought to be amended in this case, was not an error in the judgment of the court, but a clerical mistake in recording the judgment of the court; and at all events, it was competent to the court, in which the judgment was rendered, to decide upon motion, whether it was an error in the judgment of the court, or a mistake in the entering of the judgment.” But Judge Cabell in his opinion, said (p. 565); "In the case of *Halley v. Baird,*1 *Hen.*& *M.*25, which followed vew shortly after (i. *e.*after Vaughan v. Freeland), the same principle is declared, viz.: 'that the district court had no power or jurisdiction to reverse, alter or amend the judgment given at a former term of the said court, which had been entered on the order book, and signed by the judge in open court.’ This last case was. no doubt, founded on the authority of Vaughan & Field v. Freeland; for, it is resorted to in the argument,-and its phraseology expressly adopted by the court. Both cases, so far as relates to the avowed principles of the decision, are in direct conflict with Gordon v. Frazier, for, in Gordon v. Frazier, the judgment had been ‘fully drawn up, read, and signed by the judge in open court.’” After stating that in his opinion there is no conflict between the cases of Cogbill v. Cogbill, 2 Hen. & M. 467, and Gordon v. Frazier, 2 Wash. 130, Judge Cabell continues by saying (p. 566): "I feel myself at liberty to choose between the conflicting decisions of Gordon v. Frazier, on the one hand, and of Vaughan & Field v. Freeland, and' *Halley ¶. Baird,*on the other: and I am constrained, by the best consideration I can give the subject, to prefer the authority of Gordon v. Frazier.”

In Shelton v. welsh, 7 Leigh 175, an action of debt was brought on a decree for money. A conditional judgment was entered in the office without awarding a writ of inquiry of damages, and the judgment, not being set aside, became final at the next term, and execution was sued out on the judgment. But, at the ensuing term, the court set aside the judgment as irregularly entered, quashed the execution sued out on it, and gave the defendants leave to plead to the action. It was held by the court of appeals that it was error to enter judgment in the office without awarding an inquiry of damages; and that this was a clerical error which the court properly corrected at a subsequent term. Tucker, P., in delivering the opinion of the court (p. 177), said: “Next, was it competent to the* county court at the November term, to set aside the office judgment confirmed (as it is said) at the previous August term. This depends upon the question, whether the errors in the proceedings at the rules were mere clerical misprisions, or are to be regarded as errors in the judgment of the court. Upon reflection, and an examination of the authorities, and particularly of the case of Eubank v. Ralls, 4 Leigh 308.1 am satisfied that the error is clerical and amendable. It had. indeed, been decided, in *Halley's Adm'r v. Baird,*1 *Hen.*& *M.*25, that a judgment entered in the order book, and signed by a judge in open court, could not be amended at a subsequent term; a decision in conformity with the previous case of Freeland, Lenox & Co. v. Field, 6 Call 12, and with the established principles of common law. Co. Litt. 260a; 2 Vin. Abr. Amendment, A. p. 290. But in *Halley v*. *Baird,*the fact that the judgment had been entered upon the court records, and signed by the judge, was emphatically stated, and seems to have been considered as vitally important.”

See principal case also cited in McClain v. Davis, 37 W. Va. 334, 16 S. E. Rep. 631.

See further, *foot-note*to Price v. Com., 33 Gratt. 819; *foot-note*to Gordon v. Frazier, 2 Wash. 130; monographic *note*on “Amendments” appended to Snead v. Coleman, 7 Gratt. 300.

†

Kabeas Corpus. — See generally, monographic *note*on “Habeas Corpus" appended to *Ex parte*Pool, etc., 2 Va. Cas. 276.

(1)

 By an act passed at the next session of the Legislature, after the decision of this cause, it is declared that a cause removed by habeas corpus or certiorari, shall stand in the same situation in the superior Court as it stood in the inferior Court; and be proceeded on to final judgment, without new pleadings, unless such pleadings would have been proper, if the cause had remained in the inferior Court. See Rev. Code, vol. 2, ch. 108, p. 135. — Note in Original Edition.

Halley brought an action of debt against Baird, in the Hustings Court of Petersburg. After an office judgment was confirmed against the defendant and two others, his appearance bail, they became special bail; surrendered their principal to the ser-jeant of the town, who certified that his body was actually in his custody, having been surrendered by the special bail; a writ of habeas corpus was thereupon issued from the clerk’s office of the District Court of Petersburg, for the removal of the cause to that Court; upon which writ the serjeant returned that the defendant was released from his custody, after the receipt of the precept, by giving the bail returned therewith, for his appearance at the District Court, (the same bail in the Hustings Court having again entered special bail for the defendant, in the suit as it stood removed to, and was depending in the District Court.) These proceedings were had between the confirmation of the office judgment at the rules held in the clerk’s office in June, and the quarterly sessions in August, 1800, to which the writ of habeas corpus was produced. At the first term of the District Court, after the suit was removed, (September, 1800,) final judgment was entered up against the defendant, *23as upon an office judgment not set aside during the term. Upon an execution issued on this judgment, a forthcoming bond was tafeen ; which, being forfeited, a notice was given to the September term of the District Court, 1801, for a judgment and award of execution thereupon. But the District Court overruled the motion to that effect, and directed, that “all the proceedings had subsequent to the return day of the writ of habeas corpus, be set aside, and the suit sent to the rules for further proceedings to be had thereon.” For errors assigned in this judgment, a supersedeas was awarded by this Court.

Randolph, for the plaintiff in error, admitted that a habeas corpus, being in the nature of a writ of right, might be awarded, after a cause had progressed to an office judgment; but contended, that after its removal to the superior Court, it should be there proceeded on from the stage in which it stood in the inferior Court. The practice in England, of commencing de novo, (a) has no weight or authority in *this State; because, there nothing is transmitted but the names of the parties--here the record is as much removed as upon a certiorari, &c. Precedents in England, applying to points of practice, have never been regarded by this Court, (b) unless they have been established so a.s to become a rule of property. Our act of Assembly(c) allows certain fees to clerks for making up complete records upon writs of habeas corpus, &c. By the District Court law,(d) the clerk is to certify the cause of commitment, which can only be done by-certifying the whole proceedings in the cause, not a mere note of the names of the parties, as in England.

There was another point in this cause, viz. that after a judgment, an execution, and a forthcoming bond taken thereupon, the District Court, at a subsequent term, had undertaken to set the judgment aside, when their power over it had ceased, (e) This he considered conclusive for his client; but he wished the practice settled on the other point.

Curia advisare vult.

Thursday, October 16th. The President delivered the opinion of the Court, That there was error in this, that the District Court had no power or jurisdiction to reverse, alter or amend the judgment given at a former term of the said Court, which had been entered on the order book, and signed by a Judge in open Court, or to quash the proceedings in the said suit prior to the said judgment, but ought to have given judgment on the forthcoming bond taken upon the execution which issued upon the former judgment, and was forfeited. Judgment reversed, with costs, and new judgment on the forthcoming bond, as usual, according to law, &c.

Present, Judges Lyons, Carringlon, and Tucker.

(a)

 14 Vin. 226: 1 Salk. 352, Fazacharly v. Baldo.

(b)

 See 1 Wash. 10. Hudson v. Johnson; Ibid. 300, 302, Minnis. executor of Aylett v. Aylett.

(c)

 Rev. Code, vol. 1. c. 115, sect. 2, p. 216, and sect. 6, p. 217.

(d)

 Ibid. c. 66, sect. 22, p. 77.

(e)

 See Vaughan and Field, &c. v. Freeland, May, 1806, reported in a note to Cogbill v. Cogbill, in the second volume of these reports.