Waite v. Palmer

Judgment was entered in the Supreme Court, April 1st 1875, Per Curiam. As the declaration stood at the time of the trial, there was a technical variance between it and the note offered in evidence, the date in the former being laid as in 1873, and in the latter being 1871. Hence the exception was good. But the declaration was amendable, and the means of amendment appeared in the record as set forth in the transcript from the justice. The true date is set forth in his transcript, showing that the note was the same exhibited to the justice and the cause of action therefore the same. The plaintiff below, defendant in error, moves to amend the narr. so as to correspond with the transcript and note. We think he is entitled to his motion, as the amendment was one to which he was entitled below; but having omitted to ask it there, and having suffered the defendant to take his writ of error, and bring it before us for argument, he can have the benefit of his motion only on condition of paying the costs in error, including the expense of the paper-book. There is ample authority for this course : Wampler v. Shissler, 1 W. & S. 370; Morris v. McNamee, 5 Harris 173; Miller v. Weeks, 10 Id. 89. The rule is to allow the amendment to be made in this court, or treat the record as amended, where it is in furtherance of justice, and the case has been heard and decided on its merits, and no real injury will be done to the party complaining of it. Judgment affirmed, and the costs in error, including expense of paper-book, ordered to be paid by the defendant in error, and the remittitur to be withheld until this condition is complied with.