Columbia, November, 1866. fact that Smith did survey the land as Markley's, with what may be the consequences of that fact, there was nothing certain to show that this land corresponds with the grant, any more than any other parallelogram, of the same size and shape, which Smith might have run on the ridge in 1802, would now do. "Feeling better satisfied with the verdict than with many that I have seen permitted to stand, and with my concurrence too, I indulge the hope that justice will not be considered to require that the Circuit Court should be again troubled with the case." The plaintiffs appealed, and now moved this Court for a new trial, on the grounds: 1. Because the location of the Markley grant, under which plaintiff's claim, was well established, and the verdict should have been for the plaintiffs. 2. Because the verdict was not only against but without evidence, and is against law, and should therefore be set aside, and a new trial ordered. Williams, for appellants. Bobo, contra. The opinion of the Court was delivered by INGLIS, J. The plaintiff can recover only upon satisfactory proof that the Markley grant of November 3, 1788, covers the land in dispute. The verdict rendered on each of three successive trials expresses the conviction of the jury that such proof has not been made. This Court, reviewing the evidence adduced on each of the two earlier occasions, con Bank vs. Bobo. sidered that, under the rules of law applicable to the subject, the particular location of this grant claimed for the plaintiff was sufficiently well established to entitle him to a recovery. Upon a careful comparison of the evidence upon which the last verdict proceeded with that so reviewed, important additions are perceived, which, in the opinion of this Court, materially impair the foundations on which the plaintiff's location has heretofore chiefly rested, and tend to bring the correctness of that location into grave doubt. It now appears that Dobbins, on whose information alone rests the conclusion heretofore drawn in reference to the hickory station on the southwest boundary line, did not come into the neighborhood until some two or three years after the date of the Smith survey; the testimony of Martin throws considerably more doubt on what is called the "Brown corner," and the surveyor, W. C. Camp, does certainly direct attention to facts which, so far as can be seen, seem not to have been adverted to before, probably the result of the examination which he says he has made since the preceding trial. Upon a careful consideration of the whole testimony from which the jury, from whose verdict the present appeal is brought up, have drawn their conclusion, this Court is unable to say, with any such confidence. as would justify an interference, that that conclusion is wrong. The motion for a new trial is dismissed. DUNKIN, C. J., and WARDLAW, A. J., concurred. Motion dismissed. Columbia, November, 1866. JOHN D. ASHMORE vs. ISRAEL CHARLES AND OTHERS. Practice-Amendment of Record. Where the Clerk in assessing the plaintiff's damages over-calculates the amount of interest, the plaintiff may, without notice or rule, obtain leave to enter a remittitur for the excess, or may himself, and without an order, enter such remittitur on the judgment and execution. BEFORE MUNRO, J., AT GREENVILLE, FALL TERM, 1866. The report of his Honor, the presiding Judge, is as follows: "In this case a motion was made at chambers 31 August, 1866, for a rule against plaintiff requiring him to show cause at the next term of the Court of Common Pleas for Greenville District, why the judgment and execution should not be set aside as being in excess of the true amount due. On hearing the motion I was satisfied that the excess arose from a miscalculation of interest by the Clerk, and I thereupon granted an order, on motion of the plaintiff, that defendants be required to show cause at the next term of the Court of Greenville, why the plaintiff should not have leave to enter a remittitur for the excess, and amend his judgment so as to make it for the true amount due, and meanwhile that the judgment and execution be stayed. "At this term the plaintiff brought up his rule, and defendant objected to its consideration, upon the ground that under the Act of 21st September, 1866, the rule being a process of the Court in a cause of action arising ex contractu could not be heard, but was postponed until Spring Term of 1867. I considered the matter to be within my jurisdiction, and granted the following order: "On hearing the rule and argument of counsel in this Ashmore vs. Charles. case, it is ordered, on motion of J. P. Reed, plaintiff's attorney, that plaintiff have leave to enter a remittitur of the excess of the recovery as mentioned in the judgment and execution in this case, arising from an error in the calculation of interest by the Clerk on reference, and to amend his said judgment and execution by inserting the true amount, as ascertained to be due by defendants to plaintiff." The defendants appealed, and now moved this Court to vacate the order for leave to enter a remittitur, upon the grounds, viz.: 1. Because the rule to show cause why such leaye should not be granted, &c., though returnable upon its face to the present term, is by the Act of the Legislature of 21st September, 1866, made returnable to Spring Term, 1867, and was therefore improperly heard and considered by the presiding Judge. 2. Because the rule being a process of the Court in a cause of action arising ex contractu, the presiding Judge, according to said Act, had no jurisdiction in the premises at the present term, and no authority to consider the case or to grant the order. 3. Because the plaintiff is not entitled in law to the leave to enter the remittitur, &c., granted by the presiding Judge. Elford, for appellants. Reed, contra. The opinion of the Court was delivered by INGLIS, J. The error in the judgment, arising from the Columbia, November, 1866. Clerk's over-calculation of interest in assessing damages, might have been corrected by amendment, on the plaintiff's motion, in open Court, at any time, without rule, or other notice to the defendants. In The Bank of Pennsylvania vs. Condy, 1 Hill, 209, a mistake in the judgment and execution precisely similar to this, even where it arose from an overcalculation of interest made by the jury in estimating dam. ages, was corrected by amendment from the copy of the note sued on, and the allegations of the declaration in reference thereto. In Patton vs. Massey, 2 Hill, 475, an error in the judgment and execution arising from a mistake of an opposite character, made by the Clerk, in his assessment, making the sum less than the true amount appearing from the previous part of the record to be due, was rectified by amendment. The Court say, in that case: "This is one of those mistakes, in the discharge of a mere ministerial duty, which is amendable, according to the established usage of the Court," and "it is inherent in the power of any Court to correct the errors of its ministerial agents, so as to subserve the ends of justice." And see also Hubbell vs. Fogartie and wife, 1 Hill, 167. It is true, in these cases, the amendments were made upon the return of rules; but that was because the object was to conclude an unwilling party against whose interest the amendment was. And the rules were apparently taken out and returned during the term. But in Giles vs. Pratt, 1 Hill, 239, it was expressly decided that the plaintiff could amend his execution on motion, as of course, and without a rule or notice to the defendant in execution; and it was there said that the judgment might be also so amended. And see O'Driscoll vs. McBurney, 2 N. & M. 58. But, further, the plaintiff, himself, might have cured the Clerk's mistake by entering on the record a remittitur of the excess of the assessment over the true amount due as appearing from the face of the previous record; for he could therein be only doing what he would have been compelled by the |