HosMER,Ch. J.
The judgment of the county court is claimed to be erroneous, for the following reasons. 1st, Because the defendant below, was charged with the maintenance of an illegitimate child, for a specified time, without any exemption therefrom, after the child’s death. 2ndly, Because the plaintiff below, being an infant, prosecuted the suit without the allowance of a guardian, or prochein amy, by the county court. And, Sdly, Because the county court adjudged Judson to be the reputed father of the child, not having found the facts in the original and supplemental complaints to be true.
1. The fact assumed in the first objection, is not supported, by the record. Execution is to issue, quarterly, “ so long as said child shall live,” and no longer; and the preceding expressions in the judgment, by undoubted construction, are limited and qualified by this provision.
2. Conformably with the established practice of our courts, it was unnecessary, that there should be an express allowance of the plaintiff below, to prosecute her suit by prochein amy. Apthorp v. Backus, Kirby 409. It was sufficient, that the pro-chein amy was not disallowed; and until this is done, the admission to prosecute, has always been implied.
3. It is. requisite, that the county court should have found the material facts in issue, for, or against the plaintiff; and if this has been omitted, the determination of the court is erroneous. The original and supplemental complaints, compris[585] ed necessary facts, to warrant a judgment against the defendant, as being the reputed father of the child ; all of which were put in issue. The court has only found, “ That the facts in said original and supplemental complaints is alleged ; and doth, therefore, adjudge the said Agur Judson to be the reputed father of said child.” Finding the facts to have been alleged, is not determining that they were true; and this omission is not aided, by the subsequent expression, adjudging the defendant the reputed father; as this is not the declaration of a fact, but of an inference, following the word “ therefore,” supposed to result from the preceding facts established by the record.
The defendant in error has moved the court to cause the writ of error to be amended ; having discovered, that a false copy of the county court’s decree, was inserted in the said writ of error ; or, that permission be given her to withdraw her plea, and plead nul tiel record. The record before this court admits of no amendment, as it is a perfect transcript of that of the superior court; and any alteration of it, would render it not a true copy, but a false one. For the same reason, the plea of nul tiel record would be of no avail, as the fact denied would unquestionably be supported, by the adduction of the record.
If the record of the superior court is amendable, it can be done, by that court only. After error brought upon a judgment of the superior court, it is necessary to make the amendment in the latter court; because the record of that court is not before us, but a transcript of it only. This, however, presents no objection to the motion, if the record of the superior court is amendable; for the amendment being made by that court, it may be certified to us on diminution alleged, and thereupon the court can order the transcript to be amended.
This view of the subject raises this, as the only material question on the motion ; whether the superior court, after judgment, is authorised to cause the requested amendment to be made. I shall assume as being the fact, that the record of the county court was mistakenly, and incorrectly recited, and, on plea of m nullo est erratum, that the judgment of that court was erroneously affirmed, by the superior court. The motion is not, that there be an amendment in matter of form, or of a clerical misprision; but in matter of substance, without which [586] the judgment will ever remain erfoneous. In the case pro* posed, there is no statute authorising an amendment; and, at common law, after the record is' made up and enrolled, to amend is not permitted. While the proceedings are in paper, an amendment at common law may be made ; but when the proceedings are entered on record, the court will amend no farther, than is allowable by statute. 1 Tidd's Prac. 558. 660., The King v. Knowles, 1 Salk. 47., Anon. 3 Salk. 31., Gilb. C.P. 116. Wooden and Hazel's case, 1 Leon. 134., Dicken v. Greenville, Carth. 158., Walker v. Stokoe, Carth. 367. S. C. 5 Mod. 16. 69., S. C. Comb. 354., Blackmore's case, 8 Co. 157. a. Tonkyn v. Crocker, Carth. 520., S. C. 1 Ld. Raym. 564., 3 Bla. Comm. 407.
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HosMER,Ch. J.
The judgment of the county court is claimed to be erroneous, for the following reasons. 1st, Because the defendant below, was charged with the maintenance of an illegitimate child, for a specified time, without any exemption therefrom, after the child’s death. 2ndly, Because the plaintiff below, being an infant, prosecuted the suit without the allowance of a guardian, or prochein amy, by the county court. And, Sdly, Because the county court adjudged Judson to be the reputed father of the child, not having found the facts in the original and supplemental complaints to be true.
1. The fact assumed in the first objection, is not supported, by the record. Execution is to issue, quarterly, “ so long as said child shall live,” and no longer; and the preceding expressions in the judgment, by undoubted construction, are limited and qualified by this provision.
2. Conformably with the established practice of our courts, it was unnecessary, that there should be an express allowance of the plaintiff below, to prosecute her suit by prochein amy. Apthorp v. Backus, Kirby 409. It was sufficient, that the pro-chein amy was not disallowed; and until this is done, the admission to prosecute, has always been implied.
3. It is. requisite, that the county court should have found the material facts in issue, for, or against the plaintiff; and if this has been omitted, the determination of the court is erroneous. The original and supplemental complaints, compris[585] ed necessary facts, to warrant a judgment against the defendant, as being the reputed father of the child ; all of which were put in issue. The court has only found, “ That the facts in said original and supplemental complaints is alleged ; and doth, therefore, adjudge the said Agur Judson to be the reputed father of said child.” Finding the facts to have been alleged, is not determining that they were true; and this omission is not aided, by the subsequent expression, adjudging the defendant the reputed father; as this is not the declaration of a fact, but of an inference, following the word “ therefore,” supposed to result from the preceding facts established by the record.
The defendant in error has moved the court to cause the writ of error to be amended ; having discovered, that a false copy of the county court’s decree, was inserted in the said writ of error ; or, that permission be given her to withdraw her plea, and plead nul tiel record. The record before this court admits of no amendment, as it is a perfect transcript of that of the superior court; and any alteration of it, would render it not a true copy, but a false one. For the same reason, the plea of nul tiel record would be of no avail, as the fact denied would unquestionably be supported, by the adduction of the record.
If the record of the superior court is amendable, it can be done, by that court only. After error brought upon a judgment of the superior court, it is necessary to make the amendment in the latter court; because the record of that court is not before us, but a transcript of it only. This, however, presents no objection to the motion, if the record of the superior court is amendable; for the amendment being made by that court, it may be certified to us on diminution alleged, and thereupon the court can order the transcript to be amended.
This view of the subject raises this, as the only material question on the motion ; whether the superior court, after judgment, is authorised to cause the requested amendment to be made. I shall assume as being the fact, that the record of the county court was mistakenly, and incorrectly recited, and, on plea of m nullo est erratum, that the judgment of that court was erroneously affirmed, by the superior court. The motion is not, that there be an amendment in matter of form, or of a clerical misprision; but in matter of substance, without which [586] the judgment will ever remain erfoneous. In the case pro* posed, there is no statute authorising an amendment; and, at common law, after the record is' made up and enrolled, to amend is not permitted. While the proceedings are in paper, an amendment at common law may be made ; but when the proceedings are entered on record, the court will amend no farther, than is allowable by statute. 1 Tidd's Prac. 558. 660., The King v. Knowles, 1 Salk. 47., Anon. 3 Salk. 31., Gilb. C.P. 116. Wooden and Hazel's case, 1 Leon. 134., Dicken v. Greenville, Carth. 158., Walker v. Stokoe, Carth. 367. S. C. 5 Mod. 16. 69., S. C. Comb. 354., Blackmore's case, 8 Co. 157. a. Tonkyn v. Crocker, Carth. 520., S. C. 1 Ld. Raym. 564., 3 Bla. Comm. 407.
This has been the uniform and established law on this subject, existing from remote antiquity, and so rigidly adhered to, that from the 14 Edw. III. stat 1. c. 6., the first of the statutes oí jeofail, numerous acts have been made to authorise even amendments of form and clerical misprisions. By the statutes of 8 Hen. 6. c. 12., and 8 Hen. 6. c. 15., the misprisions of clerks are amendable at any time ; and by stat. of 4 Anne, c. 16., imperfections, omissions, and defects in any writ, &c., except those only which the party demurring shall specially and particularly set down, and express with his demurrer, are to be disregarded, “ so as sufficient matter appears on the said pleadings.” The cases which have been cited, the most, if not all, of them, were determined on the foundation of the above, or other statutes ; and relate to formal imperfections, or the misprision of clerks. In the case of Tully v. Sparkes, 2 Stra. 867. S. C. 2 Ld. Raym. 1570., cited by the defendant’s counsel, the amendment was made by virtue of the 16 & 17 Car. II. c. 8. In Vicars v. Haydon, Cowp. 841., on which much reliance has been placed, the amendment was of form only. In an action of ejectment, the time in the lease declared on having expired before judgment, and after this, judgment having been rendered, it was enlarged by the court; the lease, as is well known, being fictitious, and not the subject of denial, and the lessor, the real plaintiff in the action. In numerous cases, the slips or misprisions of clerks, have been amended after judgment; and cases of this description, have been referred to ; but for the reasons before assigned, they have no bearing on this case. Richards q. t. v. Brown, Doug. 114., Short v. Coffin, 5 Burr. 2730., Chapman v. Gale, 2 Lev. [587]*58722., Rees v. Morgan, 3 Term Rep. 349., Petrie & al. v. Hannay, 3 Term Rep. 659., Doe d. Church and Phillips v. Perkins al. 3 Term Rep. 749. In Tillotson v. Cheetham, 3 Johns. Rep. 95., an amendment, after error brought, was allowed; but of clerical misprisions only. “ It would be disgraceful,” said Ch. J. Kent, “ to our judicial proceedings, if mere clerical mistakes, in matters of form, were not susceptible of a ready redress; or if they were permitted to defeat a recovery upon the merits of a cause.” I am clear, if this case were before the superior court, the requested amendment, in a matter of substance, could not be made ; and however welt inclined to do it, of which there can be no doubt, the court is not invested with legal authority.
If no facts extrinsic of the record had been disclosed, on the motion of the defendant in error, I should be of the opinion, that the cause ought to be remanded to the county court. The cause on the record appears to have been virtually undecided, inasmuch as the matters in issue, have never been found for either party ; and this, in effect, would be awarding a new trial, as the necessary means of effecting justice. And the reason for doing this, is rendered more imperious, by the facts disclosed on the motion. The cause, assuming the factsstat-ed to be true, has been fairly tried, and legally adjudged ; and by an unfortunate error in both parties, the court is compelled to reverse a judgment, which, undoubtedly, is correct. So far as there exists no power to prevent the ill consequences arising in the case, we must acquiesce ; but beyond this, to withhold any possible legal aid, would be the denial ofjustice. That the court has the requisite authority, I cannot doubt, on a view of the established practice in several cases. Gleason v. Chester, 1 Day 152., Coleman v. Wolcott, 4 Day 29. In the case last cited, this court remanded the cause for trial, on a statement of facts, entirely dehors the record.
There is manifest error, and the judgments of the superior and county courts must be reversed, and the cause remanded to the latter court, to be there proceeded with, according to law.
The other Judges were of the same opinion.
Judgment reversed; and the cause remanded to the county court.