#### ISAAC P. FREEMAN et al. vs. JARVIS B. MORRIS, EX’R. OF L. MIZZELL et al.

Where an amendment is moved for, which the Judge has power to allow, and he refuses to hear the motion or the evidence to support it, on the ground that he has no power to allow the amendment, such refusal is error in law, which the Supreme Court will correct: Aliier, where he declines to exercise the power, on other grounds.

Therefore, where an application to amend the entry of a verdict found at a former term, on an issue of devisavit vel non, by inserting the tenor of the will, the Judge refused to hear evidence in support of the application on the ground that he had not power to allow the amendment: — Held, that this refusal was error, as the Judge had the power which he supposed he had not.

This was a rule against the defendants to show cause wherefore the records of the Superior Court of Bertie should not be amended under the following circumstances, upon which the plaintiffs’ application was founded :

It appeared that a paper writing purporting to be the will of one Christiana Freeman was offered for probate by the plaintiffs, at the February Sessions, 1842, of the County Court of Bertie, when a caveat was entered thereto by some of the defendants, who were the heirs at law and next of kin of the deceased ; and upon an issue of devisavit vel non, there was a verdict establishing the said paper writing as the last will and testament of the deceased, and the defendants appealed to the Superior Court, *288where, at Spring Term, 1842, there was also a verdict for the plaintiffs. It further appeared that Isaac P. Freeman, one of the plaintiffs, at the next term of the County Court was permitted to qualify as executor ; but that the said will had never been recorded, and that a diligent and thorough search had been made for the same in the Clerks’ offices of the County and Superior Courts, and the paper could not be found : And the motion of the plaintiffs was to amend the record of the Superior Court by setting out, in the finding and verdict of the jury upon said issue, the will as found, and that the same be duly certified to the County Court; which motion was opposed by the defendants.

In support of the motion, the plaintiffs offered the written affidavit of Isaac P. Freeman, the executor, to prove the contents of the said will, to the end that the record might be made in accordance therewith; which his Honor, Judge SauNDEks, before whom the case was tried, refused to hear, on the ground of the interest of the witness as a legatee under the will. The plaintiffs then offered the affidavits of one of the subscribing witnesses to said will, and of other persons for the same purpose ; and these his Honor also refused to hear, on the ground that the Court had not the legal power and authority to allow the amendment of (he record in the manner and particulars proposed. The rule was accordingly discharged, and the plaintiffs appealed to the Supreme Court.

W. N. H. Simth and Bragg, for the plaintiffs.

Barnes, for the defendants.

Nash, C. J.

Had his Honor refused to amend the record, because the evidence offered did not satisfy him that he ought to do so, no appeal to this Court could have been sustained ; for the reason that it was the exercise of a pure discretion, founded on the evidence into which we should have no right to look. Dickinson v. Lippiit, 5 Ire. 560, Quiett v Boon, 5 Ire. 9. But his Honor does not put his opinion upon the deficiency of testimony, for none was examined before him ; but upon the want of power.If the power did exist, then there was error in law upon which this Court must act.. That the Superior Court had this power, is *289made apparent by the terms of the 5th section of the Act of 1836, chapter 3. After enumerating a variety of causes in which, after-verdict, the judgment shall not be stayed or reversed, it proceeds, or “ for any informality in entering a judgment or making up the record thereof, or for any other default or negligence of any clerk,” &c. The 6th section provides, that these omissions, imperfections, defects and variances, “ shall be supplied and amended by the Court where the judgment shall be given, or' by the Court into which-it shall be removed by appeal or writ of error.” That the power resides in every Court to amend the entries on its records, so as to make them speak the truth, has been repeatedly declared by this Court. State v. King, 5 Ire. 203 ; Jones v. Lends, 8 Ire. 70.

The will of Christiana Freeman had been propounded in the Court of Pleas and Quarter Sessions of Bertie county, and upon the judgment rendered upon the verdict, the .case was taken by appeal to the Superior Court, where it was tried de novo, and a verdict returned by the jury establishing the will. The clerk, in recording the verdict, neglected to spread the will upon his minutes. The object of the present application is to supply this defect of the record, by having the will spread out in the terms of it. This the presiding Judge refused to do, because, in his opinion, he had not the power, and refused to hear the evidence by which it was proposed to make the amendment. In this he was mistaken. Whether the evidence proposed could or ought to induce the Court to grant the motion, is a question with which we have nothing to do. Purcell v. McFarland’s heirs, 1 Ire. 34; Dickinson v. Lippitt, 5 Ire. 560.

The judgment must be reversed, and this opinion must be certified to the Superior Court of Bertie, with directions to proceed upon the motion according to its sound discretion.

Per Curiam. Judgment reversed.