life estates, or estates in tail. And the court in Doe v. Dacre do not seem to have followed the authority of Keene v. Dickson, neither did Lord Kenyon much approve of Denne v. Page, when Doe v. Dacre was before this court in error (a). Of Keene v. Dickson however it may be observed that the construction was such as to effectuate the intention of the testator, for the daughters would have been disappointed if it had been construed that the remainder over vested. But here such a construction will disappoint no one.

DAMPIER J. The construction contended for on the part of the plaintiff would disappoint some material words in this will. By the words of the will the estate was not to go over to the devisor's right heirs except "for want of all such issues," that is, all the sons and daughters of his three daughters. The construction of the plaintiff would reduce it to this, that if any one of the sons or daughters of Elizabeth should take, the other remainders were to be at an end, notwithstanding there were sons and daughters of Mary and Catherine. But I construe the words "in default of such issue," and in order to effectuate the intention it is absolutely necessary so to construe them, in this way, viz. if there be no issue, or if being issue it should fail. The consequence is, that there must be judgment for the defendants. Judgment for the Defendants.

1815.

GOODRIGHT

against JONES.

(a) 8 T.R.112.

1815.

Monday,
May ist.

Where a verdict was given 'for a sum exceeding the damages in the

declaration,
and judgment
entered for the

same, and writ
of error upon
the judg-

that for cause,

USHER and Another against DANSEY and Others.

THE plaintiffs declared in assumpsit, as indorsees of a bill of exchange, for 1574l. 18s., and laid the damages at 1630l. And at the trial after last Michaelmas term the jury gave a verdict for 16857., being the amount of principal and interest to the 4th day of the following term; for which sum, together with costs, ment, assigning judgment was entered in that term. Error in parlia ment on this judgment, and transcript carried in on the 15th of March; and the error assigned was for the excess of the verdict above the damages laid in the declaration, and that judgment was entered thereon, Joinder in error. And upon a former day in this term the plaintiffs obtained a rule nisi for liberty to amend the judgment roll by entering a remittitur of 55l., and to have judgment for the residue, and also to amend the transcript on payment of costs in error, &c.

the Court allowed the plaintiffs to amend the judgment and transcript in a term subsequent to that in which the

judgment was signed, by entering a remittitur for the

excess.

Gifford now shewed cause, and admitting that the Court had a twofold authority to make amendments, first, at the common law, 2dly, by the statutes, denied their authority to amend in this case. For at the common law the Judges might only amend their judgment in the same term (a), but not afterwards, and therefore according to Ray v. Lister (b), Cheveley v. Morris (c), a remittitur cannot be entered in a term subsequent to that in which the judgment is entered. And even in the same term the Judges might not amend

(a) 8 Rep. 157. Gilb. C. P. 108.
(c) 2 Bl. R. 1300.

(b) 2 Str. 1110. Andr. 351.

a mistake of the jury, and of the party himself in taking
judgment for the whole, instead of entering a remittitur
for the excess and taking judgment for the residue,
which the plaintiff in this case ought to have done (a).
Wherefore the Court in Sabin v. Long (b) refused the
amendment, because the plaintiff's taking damages for
the whole made the judgment bad in law, and it was a
mistake founded upon the verdict.
the verdict. And as to Pickwood
v. Wright (c), where the Court allowed the amendment,
non constat but that it was in the same term, and unless
it had been allowed, it appears by the note that the
plaintiff would have been out of time. Besides, that
case is at variance with Sandiford v. Bean, there cited,
and the other authorities were not pointed out to the
attention of the Court. That case also was before join-
der in error, but here it is after; and it seems that
after in nullo est erratum, it is never admitted to amend
errors; Barnsly v. Shrimpton (d). 2dly, As to the sta-
tutes, it has always been considered that the only things
amendable by stats. 8 H. 6. c. 12. and c. 15. (of amend-
ments) are misprisions of the clerks, and that they do
not extend to any default of the party or his counsel (e);
and so strict was this rule held, that it was adjudged in
an action upon the case, if the plaintiff recovers costs,
and the record is entered that he shall recover per in-
crementum assessed per Jur. where it ought to be per
Cur., for the Court increases it and not the jury, though
this be but a mistake in a letter, yet because it is in a
judgment, it cannot be amended by the statute (ƒ).

(a) Sandiford v. Bean, 2 Bac. Abr. Damages, (D. 2). Coy v. Hymes,

2 Str. 1171.

(b) Wils. 30. (e) 8 Rep. 162.

(c) x H. Bl. 643.
(f) Vin. Abr. Amendment, F. pl. 2.

(d) 8 Mod. 304.

Park,

1815.

USHER

against DANSEY.

1815.

USHER against DANSEY.

Park, Marryat, and Abbott, contrà, cited Short v. Coffin (a), Petrie v. Hannay (b), Doe v. Perkins (c), Newnham v. Law (d), Hardy v. Cathcart (e), Dunbar v.. Hitchcock (f), in answer to the objections that the Court could not make this amendment after the term of the judgment, and after joinder in error. And they relied on Pickwood v. Wright for the making it, in opposition to Sandiford v. Bean. And as to this being the party's own error to enter the judgment for the whole damages, the entering of judgment is the act of the Court and not of the party; neither could the party of himself have remitted the damages, and signed judgment for the lesser sum, without leave of the Court; Dickinson v. Plaisted (g). Wherefore the error is the misprision of the clerk, and is amendable as such under the statutes, at the discretion of the Court.

Cur, adv. vult.

Lord ELLENBOROUGH C. J. on this day delivered the judgment of the Court.

This was a question arising after writ of error brought upon a judgment; the judgment was entered for 1,6851. the damages found by the Jury, the damages laid in the declaration being only 1,630l., and the application was for leave to amend the judgment roll by entering a remittitur for the difference. And the question in this case is whether this amendment can be made after judgment given in a former term, and writ of error brought thereon, and joinder in error. It was objected that it could not be made after the

term in which

(a) 5 Burr. 2730.
(d) 5 T. R. 577.
(g) 7 T. R.474.

(b) 3 T.R.659.
(e) 1 Marsh. R. 180.

(c) Ibid. 749.

(f) Ante, vol, iii. 591.

judgment

judgment was given, and it was not contended that it could except by the authority of the court. Several cases were cited, and the court think that there are two express authorities for allowing this amendment; one in Marsh. Rep. C. P. 180. Hardy v. Cathcart, and a former case in 1 H. Bl. 643. Pickwood v. Wright. Hardy v. Cathcart was a penal action, and the jury found a verdict for the plaintiff with 18. damages, which could not lawfully be, because damages cannot be given for the detention of the debt in a penal action. And judgment having been entered for the damages, error was brought thercon for that cause, and upon application to the Court of Common Pleas for leave to amend the judgment by entering a remittitur of the damages, the Court, after a review of the precedents and after taking time to consider, thought itself at liberty to make the amendment. There the question was argued whether the amendment could be made by stat. 8 H. 6., which authorizes the Judges to amend all which in their discretion seems to be misprision of the clerks. It was argued that the Court had authority to allow the amendment, in that which was clearly a misprision of the Clerk within the statute; and Heath J. who delivered the judgment, said that "It was a rule at common law that a judgment could not be amended after the term in which it had been entered up, but that several statutes had corrected and supplied this defect in the law, and particularly the statute of H. 6. relieved in all cases where the error had arisen from the misprision of the clerk." Thus it seems as if the amendment made in that case was founded upon the statute, considering the error as the misprision of the clerk. In Pickwood v. Wright the same leave was given to enter a remittitur of

VOL. IV.

H

the

1815.

USHER

against DANSEY