An act of the court injures no one.
Where this rule can be made to apply to any loss or injury to the party, through delay or otherwise on the part of the court, and it is in the power of the court to remedy the evil, it will be done ; but there are many cases in which error and delay on the part of the court and its officers produce injury and loss to one or other of the parties which the court cannot, nor will not, compensate.
Where the time has gone by for entering up judgment through the delay of the court, judgment will be ordered to be entered up nunc pro tunc, that is, the proceeding in question may be taken now, instead of at the time when it would have been taken but for default of the court, for the convenience of the court, through press of business, taking time to deliberate on its judgment, death of the party, or other like cause ; as where a defendant dies pending the argument on a point reserved on which judgment of nonsuit is afterwards given, his representatives are entitled, upon application to the court, to enter up the judgment of the term next after the trial, that they may get the costs of the nonsuit. But if it were by laches of the plaintiff, or those representing him, or by reason of any proceeding in the ordinary course of law, that judgment was not entered up, the court will not interfere under this rule. Judgment will in some extraordinary cases be allowed to be entered nunc pro tunc “where the default is not that of the court ; it is, however, only in very rare cases. And therefore, where, on a verdict for the plaintiff subject to a reference at the Spring Assizes, 1851, and an award in her favor in Trinity Term following, she having died on the 22nd of November, and her will being taken out of the proper office on the 3rd December, to be proved to enable her executrix to sign judgment, but in consequence of a caveat entered by the defendant, probate was not obtained until the 6th May, 1852 ; the executrix having moved for leave to enter up judgment as of Michaelmas Term, 1851, it was refused, the delay not being attributable to any act of the court, though it was admitted by the court to be a hard case. Also, where a judge's order was made a stay of proceedings on a day named, on payment of debts and costs, the plaintiff having liberty to sign judgment if the costs were not paid, and the plaintiff having died before the day named, it was held that judgment could not be entered nunc pro tunc. Nor, even where the fault appeared to be that of the officer iu the master's office, in delaying the judgment, it not appearing that the officer had refused to sign judgment. The principle governing the court in allowing judgment to be entered nunc jpro tunc, is upon the assumption that the party was in a condition, at the time as of which it is proposed the judgment should be entered, to claim the decision of the court, the court not having jurisdiction otherwise to order judgment to be so entered. Amongst the cases where the error or delay is that of the court, and whereby loss and injury are occasioned to the parties, and in which, nevertheless, the court will not interfere to assist, are such as where, from want of proper arrangements as to time, causes are made remanets, or referred to arbitration, where some officer neglects his duty, where there is no appeal from the •decision of the court or judge, and in many of those cases where the maxim, ” omnia prsesumuntur rite esse acta,“ is said, though improperly, to apply.