¶1I concur on the ground as to the ca. sa.; but I doubt whether more than the aggregate of the damages and cost stated in the judgment, with the subsequent accruing interest, can be recovered.
¶2I think that the mistake in the judgment should have been corrected by amendment upon motion, before any verdict should have been allowed to contradict even its recital or miscalculation, not conceding that an order of court could change the pre-existing rights of parties. I do not think that the order made by Judge Butler was an order for a return nunc pro tunc, but only an order granting permission for a return now, to be made of what was before done according to the truth. Before the return of the ca. sa. I think the bail was not fixed, whether we look to the Act of 1785, or to the rights of special bail at common law; and a return made after commencement of the suit, could confirm no right of action that did not before exist. There is a difference which seems not to have been adverted to between amendments of the acts of the court for evidence, and amendments of the acts of officers, which are required as conditions precedent to the right of action.