Cragin v. Warfield

Wilde, J. Whether the blank, which the court of common pleas allowed to be filled, by way of amendment, be regarded as matter of “form or substance,” it is very clear, under the Rev. Sts. c. 100, § 22, that the amendment was well warranted. A similar amendment was held allowable, after verdict, in McLellan v. Crofton, 6 Greenl. 307. So in Clark v. Herring, 5 Binn. 33, under a statute of Pennsylvania, which authorized the amendment of declarations before trial, a plaintiff was permitted to increase the ad damnum from $600 to $900, on the trial. The jury found a verdict for a sum beyond the amount of the original ad damnum, and the defendant alleged the allowance of the amendment, as one of the errors for which the judgment on the verdict should be reversed. Yeates, J. said, “ the amendment introduced no new merits into the case. The quantum of the demand, if any thing was due, was to be ascertained by the jury; and the defence would be precisely the same, whether the damages were laid at $600 or $900.” So, in the present case, and in McLellan v. Crofton, the defence on the merits was not affected by the omission to lay any damages in the writ. In Converse v. Damariscotta Bank, 3 Shepley, 431, it was decided that where a writ, in which the damages demanded exceeded $100, had been directed to and served by a constable, who had no authority to serve it, the ad damnum might be reduced, so as to justify the service. And before our revised statutes were passed, it was held, in Danielson v. Andrews, 1 Pick. 156, that the ad damnum in a writ might be increased, for the purpose of giving a right of appeal. But however all this may have been heretofore, since the revised statutes authorize amendments in matter of substance, as well as in matter of form, there can be no doubt in the present case. Exceptions overruled.