Christian v. Penn

By the Court. Warner, J. delivering the opinion. The error assigned here, to the decision of the Court below, is, the rejection of the amendment offered to the plaintiff’s declaration. [485] [1.] "We think the amendment ought to have been allowed, under the rule as it existed at Common Law, and more especially, under the provisions of our Statute. By the Common Law rule, when a declaration shows a title or cause of action defectively set forth, it is amendable. Murphy vs. Lawrence, 2 Kelly’s Reports, 260,-1. The cause of action setforth in the plaintiff’s original declaration, was th ^fraudulent. procuringone of the co-partners to execute anote to the defendant,for the sum of four hundred dollars, whereby the plaintiff, as one of the partners, was compelled to pay it. Fraud on the part of the defendant, in procuring the signature of the co-partnership name to the note, and damage resulting therefrom to the plaintiff as one of the partners, constitutes the cause of action, as set forth in the original counts of the declaration. The original declaration furnished a cause of action by which to amend. The amendment does not, as was supposed by the Court -below, introduce a new cause of rction, but alleges the fraud on the part of the defendant, in procuring the co-partnership signature to the note of four hundred dollars, for a different object, and in a different manner, so as to meet the proof on the trial, and avoid a variance between the allegata etprobata. The fraud in procuring the signature of the co-partnership name of Duncan and Christian to the note for four hundred dollars, whereby the plaintiff, as one 'of the partners, was compelled to pay it, is, substantially,' the cause of action, in both the original and amended counts of the declaration. The first section of the Act of 1818, declares “that in every case, where there is a good and legal cause of action, plairdy and distinctly set forth in the petition, and there is in substance a copy served on the defendant or defendants, or left at their most notorious place of abode, every other objection shall be 'on motion amended, without delay or additional costs.” The second section of the Act declares, “that no non-suit shall be awarded, when the cause of action is substantially set forth in the declaration, for any formal variance between the allegation and proof.” Prince’s Dig. 442. When a non-suit is prohibited, for any formal variance between the allegation and proof, the reason for allowing amendments, so as to make the record complete, and a protection to [486] the rights of parties, would seem to operate with increased force. Indeed, we are of the opinion, the Aotof 1818 has not, in the general practice of our Courts, received that liberal construction in regard to amendments, which the Legislature-intended. Our rules of practice were doubtless intended to prevent surprise or injusrtice, in making amendments to either declarations or answers, by-requiring notice thereof, to the adverse party, or his attorney; and with this restriction, we think the Courts should be liberal in allowing amendments whenever there is a cauée of action to amend l>y, as it facilitates £he ends of justice, prevents delay and costs. Let the judgment of the Court below be reversed, and the cause reinstated, and the amendments offered he allowed.