majority">Hutchinson, J.

after stating the case, delivered the opinion of the court. The question tobe decided is, do the facts* contained in this complaint, entitle the complainant to all or any part of the' telief sought ? It is very important that, in all judicial proceed-1' ings, the remedy to be applied should be adopted to the greivance complained of: and the experience of ages has drawn some practical lines of distinction between different remedies, which, if followed* Will do more substantial justice than any new course that could now be framed. The writ of error and the audiia quarelaf not only come to us as writs known at common law, but our statutes refer to each, regulating their allowance, and, in some measure, showing' their effect. That important distinction, of which we should never lose sight in applying these remedies, is, that the ‘writ of error fastens upon errors committed by the court, does them away, and proceeds to do justice between the partiesthat justice which the court below ought to have done. The audita querela seizes upon the misconduct of the recovering party, as a reason for setting aside an execution for a cause arising after judgment, or for setting aside the judgment on the ground that the complainant has had no day in court. And, when either the execution or the judgment is thus set aside, the complainant recovers the damages he has sustained by the wrongful act of the party, of which he complains. In the case now before the court, there is no complaint of the execution but what is predicated upon the irregularity of the judgment. The irregularity complained of is, that, after the complainant had been properly brought before the court, and had appeared, and reviewed his cause,, and let judgment pass by nil dicit, the judgment was in fact made up by the Clerk after the rising of the court.

Allowing this to be so, and allowing the damages to be in their nature uncertain, as the complainant contends, it would be the proper subject of a writ of error, for error in fact, in which this court could reverse the judgment so far as relates to the assess-*438m'ént of damages, and order a new assessment which wóuld do ample justice betweeh? the parties. But it would be no ground for an audita querela, to throw the original plaintiff out of court, and compel him to pay damages for this proceeding, and bring a new action to recover his debt. So, if a mistake intervened in taxing costs, a writ of error would be the proper remedy ór, the court on motion would tax anew, as justice required'. It is probable Such a correction might be proper as to’ the' review, Said to have been paid by Weeks, and half of óne fulí attorney’s fee, faxed for th'e Credit^ or 5 but that furnishes no' reason fo'r setting" aside the whole judgment. With regard tó the' Clerk’s doing this business after thé court had risen, that is of no consequence, provided the act done by him was the proper business of the clerk. As well might oné complain that the' clerk cast the interest upon a note, in a case defaulted, arid éntere'd the' judgment after the court had risen ; or .that he made his récord after the' court had risen. The usual course, and the propér arid necessary course, is, for the clerk to make all necessary minute's in term time, showing a disposal of the actions, and make the entries in detail after the court has adjourned : and all this, Whén done, is treated and íéco'r'ded as done in term timé. Without such a éodrseo'f practice, the court must tarry by till the clerk’s business of the term is all completed; which would bé a useless waste of time ; for any mistake of the clerk, in any o'f his appropriate duties would afterwards be corrected orf motion to the court, to amend the record núncpro time.

The nioré important point raised, which we are ready arid willing to decide, though but little necessary for the disposal of this complaint, is, Whether the assessing off the damages, in this" case,was the propel-business of the clerk ? We consider it to be so, prima facie ; as much so as wo'uld be the casfirlg Of interest upon' d note after judgment by default or nil dicit. In that case the amount of the note and interest would constitute'the damages. Iri this case the amount of the judgments, executions, and commitment fees, with interest on the same, constitute the damages.-Thisis prima facie the case. If the sheriff would derive benefit from the provisions of the statute, to mitigate the damages, he must come in the way the statute supposes. He must shew tbs *439poverty-of the prisoners. And this must be done on trial-; or at least, on .a motion for a bearing ip damages : and is a .proper subject for the investigation of the jury. We recollect no instance of such a defence presented in any other way than .to-the jury.

Royce and Hunt, for the complainant..Mdjs and Davis, for the defendant,.

Here the complainant had his day in court to present his testi-? mony upon this point/ and his suffering judgment to pass against him, as he did, was a waiver of this defence, whatever might have been its efficacy to diminish the damages.

But the complaint suggests that the damages are greater than the amount of the executions,. This is a ;caytious expression which the complainant might have sworn to wjth truth ; but he keeps out of view the interest to which .thp creditor was entitled. Taking into view the principal and interest, to which Lawrence was ■entitled, the complaint notonly fails to show'the complajnant injurr ed in the assessment of the damages, but it shows ihat.he was not tlius injured. A cast; readily made, shows .that the damages were not assessed too high.

The judgment of the court is, that the complaint is insufficient, a.nd we award to the creditor, Lawrence, six per cent, interest, as •damages for the delay, together with costs. ‘ '

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