2 Whart. 132 | Pa. | 1837
The opinion of the court was delivered by
Great liberality has been manifested by the courts of this state in allowing amendments before trial, when it appears that such indulgence may contribute to promote substantial justice. Formerly, suitors were much perplexed by writs of error, brought upon very slight and trivial grounds, as misspelling, or other .mistakes, all which might be amended at common law, while all the proceedings were in paper, for they were then considered as only in fieri, and therefore subject to the control of the courts. But when once the record was made up, it was formerly held, that by the common law, no amendment could be permitted, unless within the very term in which the judicial act so recorded, was done; for during the term the record is in the breast of the court, but afterwards it admitted no alteration. Co. Lit. 260; 2 Burr. 1099. But now the courts are become more liberal, and when justice requires it, will allow of amendments at any time while the suit is depending, notwithstanding the record is made up, and the term past; for they at present consider the proceedings as in fieri, till judgment is given, and therefore that until then, they have power to permit amendments by the common law; but when judgment is once given and enrolled, no amendment is permitted in any subsequent term. 3 Bl. Com. 406. The amendment which was permitted by the coart in this case, was allowable at the common law, and did not fall necessarily under the act of 1806; the effect of which is to allow amendments after swearing the jury, as fully as they could do at common law before that period. Under the act of 1806, it has been repeatedly held, that the amendments prescribed are mandatory, and not discretionary; and for that reason they have been recognised (where amendments have been allowed or refused,) as subjects of error in many cases. But when the amendment is at common law, it rests in the sound discretion of the court; who may impose on the party asking the amendments, proper and equitable terms and conditions, according to the particular circumstances. Burk v. Huber, (2 Watts, 306.)
There is nothing in the second and third errors: for such proof was made of the identity of the check, as to justify the court in permitting it to be read, and if read, in leaving it to the jury to decide, whether it was the check to which the witness referred. The witness was present, when a check for $150, drawn by Warnet Myers, was presented by Caldwell, the defendant, to Remington, the plaintiff to change. He heard Caldwell say, that he would be responsible for the bill, upon Remington’s refusing to change it, and that he might take the amount of his bill out of it. Remington, in the presence of the witness, paid $75, and gave him a check for the balance, after deducting his bill. Caldwell afterwards stopped at Remington’s, and told him if he would present the check on a certain day, he would be paid. He afterwards heard Remingtom say to Caldwell, “ you ought to pay the check,” to which Caldwell answered, “ no, you had the check on your own responsibility, and I think you ought to lose it.” This was the testimony in chief, in relation to the check, which was produced and shown to the witness. On the cross-examination, the testimony on the question of identity, was undoubtedly weakened, but was not so entirely overthrown as to make it the duty of the court to withdraw it from the consideration of the jury. There may have been, it is' true, another check of a different
Judgment affirmed.