#### JOHN GARDNER & ISAAC Z. WHITAKER, *plt'ffs in error, vs.*The BOARD OF COMMISSIONERS of the county of GRANT, *def'ts in error.*

l J *Error to Grant*county.

As a general principle, after a court has adjourned for tho term, it has no power to amend or correct the record of tho term. If tho record is erroneous, it can only he corrected *by*writ of error.

Tho statute of amendments does not extend to tho correction of errors in the judgment after the adjournment of tho term at which tho judgment was rendered.

At the March term, 1840, of the Grant District Court, Gardner, one of the plaintiffs in error, was convicted of an assault with intent to kill, and was sentenced by tho court to pay a fmo and the costs of prosecution. By an arrangement *with tho District*Attorney, he, together with Whitaker, the other plaintiff in error, came into *court*and confessed judgment in favor of tho county commissioners, in an action of assumpsit, for the amount of the fine and costs, upon which judgment execution was stayed for a specified time by agreement of the parties. At the September term, 1841, of said District Court, the plaintiffs in error made a motion to amend the record of the judgment by confession, by inserting therein the consideration and reasons for the confession. The District Court overruled the motion, to which decision exceptions were taken, and the facts sought to be placed upon the record by the amendment asked for, were made a part of the bill of exceptions. This writ of error is brought to reverso the judgment by confession.

The following assignment of errors was made in the record from the court below.

“ 1. The court erred in overruling the motion to amend the record:

*2.*The District Court erred in rendering the judgment which this writ of error is brought to reverse:

*First.*Because the only consideration of the judgment was the compounding of a felony, for which there had been a conviction and sentence.

*Second.*The judgment is not authorized by law.

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      *Third.*The judgment is against good policy.

*Fourth.*The judgment is without consideration and void.”

Moses M. Strong, for plaintiffs in error:

This case is not like any to be found in.tho books. It must depend upon the application which the court will make of the general principles of law to the facts. We contend that the District Court erred in permitting the record of the judgment of confession to bo made. If we are correct in this position, it will hardly be necessary to notice the other errors assigned, It is a well established principle of law; that all contracts and agreements! entered into for tho purpose of compounding a penal act, are against public policy, and void; 4 Black, Com. 133, 136; *The People m. Bishop, 5*Wendell, 111. Gardner had been convicted of a felony, and had been sentenced by the court. The judgment by confession, although noVcompounding the felony, was similar in its principles and worse in its consequences; it was compounding the sentence of the court. The pardoning power is vested by law in the Govern-oralone. After sentence, he only can relieve tho convict. Neither the District Attorney, nor the County Commissioners, have any thing t.o do with the matter, and their attempting to relieve Mm from punishment by taking a security for the penalty, has no authority of law to sanction it. If a bond be given which is against the policy of tho law, it may bo avoided. A judgment confessed, as in this case, that is not only without any lawful consideration, but against policy, ought for the same reason to bo set aside.

It will probably be insisted, that this court cannot look beyond the record of the judgment, or inquire into the facts upon which it was rendered. If such should be the opinion of the court, there is an end of tho case. But the facts are made a part of the record by the bill of exceptions, and I put the question to this court; if the case were now here as an original proceeding upon the same state of facts, would such a judgment be allowed to bo entered? If the court is not prepared to answer affirmatively, then the judgment must be reversed.

Dunn, for def !ts in error:

The judgment by confession estops the plaintiffs from alledging ought against it, or reversing it on error. The only remedy against such a judgment is by bill in chancery, showing fraud or mistake in procuring it; and these are tho only grounds upon which even equity can afford relief. When a judgment is confes*50sed, there is an end of the matter so far as the courts of law aro concerned.

Bujknett, for samo parties:

If this court can go back behind the judgment, and inquire into the legality of the consideration, (a principle that is not admitted,) the record does not sustain the position that has been assumed. It does not appear that Gardner was committed until the fine and costs should be paid, as a part of his punishment. The District Attorney may have chosen to take a *capias pro fine*against him, and the court may have very properly awarded it. In many cases this would bo the better course for the public and the public officers, where a pecuniary fine is all the penalty inflicted, as in this case. Suppose him in custody under a capias for the sum imposed; any person may become his security for it upon time, if acceptable to the authorities entitled to receive it. By such an arrangement the fine itself becomes discharged, and that is a sufficient consideration for any undertaking by *him*and his securities to pay the money ata future day; and this is no compounding of felony. But the court cannot go into!’an examination of these matters. As has been correctly stated, by confessing judgment, the plaintiffs are estopped from alledging errors in the judgment; the confession amounts in law to a release of errors; and it would be without precedent or reason, to reverse a judgment because the consideration upon which it was rendered is not spread upon the record.

*We*contend further; that the District Court had no power to amend the record at the time when the motion was made, and that to have done so would have been error. The motion was made at the third term after the confession of judgment. The record was then out of the power and control of the court, so far as the form and effects of .previous judgments are concerned. During the term, the record of all the proceedings of the term is entirely under the control of the court for amendments and corrections. For such purposes, the law considers the whole term as but of one day. But after the final adjournment, this power is atan end, and the court can never go back to previous terms and amend and alter the record of its judgments. There would be no stability in records if this were the case. The statute of amendments, broad as it is, docs not authorize the amendment sought by the motion.

*51Opinion of the Court, by

Judge Xevin.

This cause came into this court on a bill of exceptions taken to the decision of the District Court of Grant county at the September term for 1841.

Upon an examination of the transcript of the record, it appears that at the March term of said court for 1S40, the said Gardner and Whitaker appeared in court, and entered a judgment by confession, in an action of assumpsit, in favor of said Board of Commissioners, for two hundred and thirty-two dollars and the costs of suit; and at the said September term of said court, they filed a motion, for reasons therein stated, to amend the record of said judgment by inserting therein the true consideration of the judgment, which motion was overruled, and exceptions thereto taken.

The only point that presents itself for consideration in this court is, did the court err in overruling the motion? It is a principle, too *well*established now to be questioned, that generally, aftet the adjournment of the court for the term, its record can never after-wards be touched by that court; and if error has found its way into the proceedings, it must be corrected by another and a higher court. To this general principle there are some few exceptions, and they are mostly of statutory provisions. One of the exceptions is, the proceeding by writ of error *coram nobis.*This is a proceeding which lies in the same court where the cause is tried; whereas the writ t.o correct errors in the *judgment*of that court, cannot be brought before the same court, but its object is to remove the cause to a higher court. For it would be absurd to appeal to the same court from an error of its own judgment. But as the writ of error *coram nobis*does not question the judgment of the court, but only alledges some defect in the execution of the process, or some clerical misprison or mistake, or some error in the proceedings arising from a fact not appearing on the face of them, (as when a judgment is rendered against a party after his death,) there is no absurdity in permitting it to be brought before the same court that tried the cause. Thus, if the court enters up ■a judgment as confirmed against the appearance bail, whereas in truth and in fact he had filed a recognizance of special bail, and had set the office judgment aside, which, however, the clerk omitted to enter in the record, this writ of error *coram nobis,*(sometimes called a writ of error in fact,) lies to correct the proceedure, *52and upon the fact appearing, the court proceeds *to*reverse *the*judment against the appearance bail'up to the point where the error was committed, and placing the cause in the state in which it would have been, had the fact been properly entered on the record, sends it back for further proceedings. 2 Wash. *ISO;*2Rand. 174. The provisions of our statute of amendments do not extend to such a case as is made by the motion under consideration. Believing that the District Court had no authority to interfere with the judgment of a previous term, in the manner asked for by the motion, we affirm, with costs, the decision overruling the motion.

Moses M. Strong, for pl’tff in error.

Dunn and Burnett, for def’ts in error.