| Vt. | Feb 15, 1839
It is first objected that the proceedings of the county court, in dismissing the action, were erroneous, and that, if the amendment was improper, they could do no more than restore the suit to its foimer state, and the case of Baker v. Ripley, 1 Aik. R. 84, is relied on. It is doubtless true, that, in general, when an amendment has been improperly made by an inferior court, and that is disallowed or set aside, the case stands as though never amended, and this rule would apply to all amended declarations. If the amended declaration is rejected, the original one stands.— In the present case, the only judgment, which the county court could render, was to dismiss. If Godfrey was ever a party, he ceased to be such when the amendment was made, and could not, by the county court, be brought back to the suit. The appeal was taken from a judgment rendered in favor of Emerson against the present defendant, on a note made payable to him. The defendant could not, in the county court, be compelled to answer to a suit on a different cause of action, to different parties, and if Emerson was, in
The question then arises, whether the amendment, allowed in this case by the magistrate, was one which could be made according to established principles.
Amendments are usually within the discretion of the court, and the granting or refusing them cannot be questioned in any other tribunal. But when an amendment is made and the court had no power to grant it, the party affected may be entitled to relief. And although the improper exercise of a discretionary power may be without remedy, the exercise of a power where there is and can be no such discretion, is erroneous. Thus, allowing an amendment which changes entirely the form of action, and introduces a new count for a new cruse of action, not contained in the original declaration, has been adjudged to be such an .error that the judgment of the court, making the amendment, was reversed.— Carpenter v. Gookin, 2. Vt. R. 495. An amendment,essentially changing the parties, would be liable to the same objection, if the change of parties would have the effect to introduce a new cause of action, not contained, in the original declaration. The amendment here allowed was of this character. It changed the parties. John Emerson might or might not have been of the firm of Emerson & Godfrey, and if he was, a suit in the name of one of the members of a firm, or for a cause of action accruing to him alone, is entirely different from a suit in the name of the firm. A note, payable to John Emerson, would not support a count on a note payable to Emerson & Godfrey. The authorities, which have been relied on in support of the amendment, we think, do not warrant the proceedings of the justice. A writ of error has been amended in England, by changing the parties, to make it conformable to the original record. The statute of 5 Geo. I,c.l3. permits an amendment to be made where there isa variance from the original record, and when the record is sent up to the court of error, that court, having it before them, are required to make such amendments as will make the writ conformable to the record. This was the true ground on which the amendment was allowed in the case in Cowper’s R. 425, although it was said the statute was sufficiently broad to have allowed the amendment on another ground. A new count