Opinion
December Term, 1825.
1. 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, etc. 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.
2. 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.
PETITION filed in 1816, in BEAUFORT County Court, under the act of 1809, against several defendants, complaining that the milldam of the defendants caused the lands of the petitioner to be overflowed, (74) 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 15 l. annually for five years, and it was entered upon the record, "Let judgment be entered accordingly."
Gaston for appellant.
Hogg for appellee.
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 further 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, J., 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 (75) by suggesting the death of Louisa 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 further 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."
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 contradistinguished 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; forasmuch 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 interests were then uncertain, and have since determined by casualty, their remedy is by audita querela, or some remedy in the nature thereof. (83) 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
PER CURIAM. Judgment affirmed.
Approved as to first point: Gillet v. Jones, 18 N.C. 346.
Approved as to second point: Butner v. Keelhn, 51 N.C. 61.