Beaufort County NcArchives Court.....Wilson, V. Myers & Others 1825
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 25, 2009, 6:37 pm

Source: Nc Reports Vol 11, 1897
Written: 1825

December Term 1825

WILSON v. MYERS and others. 

From Beaufort.

A petition was filed against several defendants, complaining of an injury done 
to lands by a mill pond; a trial was had and verdict taken for the petitioner, 
and judgment against all the defendants; one 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 (74) caused 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 15l. 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 Josegh 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 supersedeas 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 clerk as a 
matter of course, on the finding of the jury; that he did not wish to have 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 
amend 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 Worthington died in November, 1817, and Lucy Blount in February, 1818. 
At fall Term, 1825, Norwood, Judge, presiding, an entry was made on the record 
in these words: At the present term, the motion made at spring term, 1821, to 
amend the original record, by suggesting the death of Louisa (75) Worthington 
and Lucy Blount, as if it had been done at spring term, 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 on ordinary unit. 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 15l. for one year's damage before the filing of the petition, 
and the same sum annually for four years thereafter. The amendment prayed, 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 misprisons 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 (76) is of 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 Charles, 2, excepts 
matters which are of the right of the matter of the suit, or whereby the issue 
or trial is altered. (Bac. Ab. "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 of 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 R., 782.)

Our 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 (8 N. C., 
177); Baker v. Moore (4 N. C., 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 as 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 originally 
preferred survives against the rest. (2 (77) Tidd, 848, 9.) Here it has not so 
survived; for, by the petition, by the judgment, compensation is demanded, not 
for the tort done when the suit was brought, but for the annual 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 1800, have taken a judgment against the survivors for one year's damage 
prior to tho suit; because as tort feasors, 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. (7 N. C., 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. Rep., 434; 14 Ibid, 417.)

11—10

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 solely responsible for the whole bene-(78)fit 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 
himself, have 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 Ibid, 412.)

But if these views are erroneous, and it was right to permit the amendment, 
still it was wrong to dismiss the writ 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 fair opportunity of being 
heard on the case, as he would have been before the issue found. (1 H. B., 
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, amenable, unless there be something to amend 
by. The error complained of in this suit, was not an omission of the clerk, 
but of the party; and is, therefore, not helped by the statutes of amendment 
technically so-called, but by those of Jeofail, and is within the terms of the 
32 Hen., 8, ch. 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 stand, (79) 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 case 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. P. Dumond 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. M'Crawley et al (3 N. C., 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 
favor, 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 Ann, 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 Ann. is made for the express purpose of 
extending all the statutes of Jeofail to judgments upon confession, nil dicit, 
and non sum, informatus. The case cited, therefore, (80) is the stronger, that 
it is upon an interlocutory judgment. In Newnham v. Law, the proceedings were 
ex parte, and he who claimed advantage from them might, upon very rigorous 
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 reverse 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 allowed in suits at common 
law, it ought not to be allowed in this proceeding under our act of 1809, ch. 
773, New Rev. The proceeding under the act of 1809, is strictly in tort. The 
remedy at common law, for the tort complained of by the petition, was an 
action on the case, and survived against any of the trespassors. By the stat. 
of 8 & 9 Will., 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 10l. per annum, when the petitioner 
was compelled to take his judgment for five years. If the annual damage 
exceeded 10l, 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, for in a writ of coram (81) 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 
defects in the proceedings antecedent to the judgment. (Bac. Ab., 1, 6.) The 
injury 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 4 N. C., 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 (82) not affect this question; 
it depends on the principles of common law alone. As a general rule, it is 
unquestionably true, that no act of the Court, as contra distinguished from 
the act of its 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 cases 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 had 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 law, 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. Nor 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 afforded any objection) when the five years' judgment was 
about to be entered up. If their interest were then uncertain, and have since 
determined by casualty, their remedy is by audita querela, or some (63) remedy 
in the nature thereof. If they are entitled to any relief, at any rate it will 
not justify the Court, upon a bare suggestion that such may be the case, to 
reverse the original judgment. The writ of error must be dismissed, and

Judgment affirmed. 

Approved as to first point. Gillet v. Jones, 18 N. C., 340. Approved as to 
second point. Butner v. Keelhu, 51 N. C., 60.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897


File at: http://files.usgwarchives.net/nc/beaufort/court/wilson1431gwl.txt

This file has been created by a form at http://www.genrecords.org/ncfiles/

File size: 20.3 Kb