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![handle is hein.slavery/ssactsengr0046 and id is 1 raw text is: WILSON V. KEMP
against an executor de bonis propriis, by making it de bonis testatoris si, &c. et si
non, &c. de bonis propriis, was within the above rule, being a misprision of the clerk
in the entry of the judgment in a thing which was apparent (c), for it was apparent
on the pleadings that the judgment was inapt. And there is this difference between
Petrie v. Hannay (d) and the present case, that there the record in which the amend-
ment was allowed was originally a record of this Court; so that the error was begun
and amended in the same Court. The Statutes of Amendment, 14 Ed. 3, stat. 1, c. 6,
8 H. 6. c. 12, and 16 and 17 Car. 2, c. 8, do not aid this case, because they for the
most part relate to mere verbal misprisions, or omissions of form ; but this is one of
substance. And such was the opinion of the Common Pleas, who refused to amend
this error upon that ground (e). As to the second error, amendment can only be
made after error brought, where diminution may be alleged; but the mis-entry of
one term for another is not diminution.
Scarlett, contrA, observed, that the Common Pleas would probably not' have
refused the application upon the first error, if it had been made in the right form,
instead of applying to strike out treble costs. And as to the second error, he explained
it thus, that the record came into this Court in Michaelmas term, and it was only by
misprision of the clerk that a continuance to the next term, in which the assignment
of errors and [594] joinder were really made, was not entered on the roll. Therefore
alleging the want of such a continuance is alleging diminution which the Court has
authority to amend in this case, if it had authority to amend in Short v. Coffin and
Petrie v. Hannay.
Lord Ellenborough C.J. I find by reference to the minutes of proceedings in this
Court, that this Court is in the habit of granting leave to make this sort of amendment.
I find that it is ordered thus: Let it be referred to Mr. to amend the
record according to the several proceedings in the Inferior Court to be perused by
him. So that it appears in that instance the Court in the exercise of its discretion
ordered the materials to be brought before them in order to make the amendment.
Whether the transcript be carried to the House of Lords or not, if in this case the
amendment is warranted by the Statutes of Amendments, it is our duty to make such
amendment. Certainly this is no greater latitude of amendment than was allowed
in Short v. Coffin, where the Court thought itself authorized to amend a judgment
against an executor by making it de bonis testatoris si, &c. instead of de bonis propriis,
as the mistake of the clerk. This also is the misprision of the clerk in omitting to insert
the authority for the Court's allowing treble costs. Any eye acquainted with legal
proceedings would see that treble costs were not a part of the ordinary judgment of
the Court. A power is given in particular cases; and this amendment is to supply
upon the record the certificate of the Judge, who is authorized by a particular statute
to allow treble costs. This seems clearly a case of omission which [595] may be
supplied, according to the precedents for amending omissions. In Petrie v. Hannay
the judgment was entered on one issue only, which certainly was a defective entry,
and the Court must have referred to something extrinsic to see if the verdict should
not have been entered on all the issues. Here the House of Lords have a defective
record ; diminution has been alleged, and when it has been amended in this respect,
upon being certified into the House of Lords, they will direct the transcript to be
amended. It seems to me that this amendment is warranted by the authority of
precedents, and by the reason of the thing, as well as the statutes.
Per Curiam. Rule absolute.
WILSON AND ANOTHER against KEMP. Monday, Feb. 13th, 1815. An insolvent
debtor, who has taken the benefit of 54 G. 3, c. 28, is not liable to arrest upon
a subsequent promise to pay a debt contracted prior to the day prescribed in
the Act.
The defendant was discharged under stat. 54 G. 3, c. 28, (Insolvent Debtor's Act,)
and subsequently to that made a positive promise to pay the debt of which he had
been discharged, upon which he was afterwards arrested. And now Marryat moved
upon an affidavit disclosing these facts, and that the debt accrued before the 6th of
November 1813, mentioned in s. 28 of the said Act, that he might be discharged upon
3 X. & S. 594.
(c) 8 Rep. 162 b.
(d) 3 T. R. 659.
(e) 1 Marsh. R. 382.](ViewImageLocal?handle=hein.slavery/ssactsengr0046&div=1&collection=&method=preview&ext=.png&size=3)