Bucklin v. Ward

The opinion of the court was delivered by Mattocks, J. The first question presented is, whether the declaration, which the county court permitted the plaintiff to file, was so far variant from the declaration before the justice, that this court will consider that as error, and review the judgment. In describing the note which was the inducement to the promise declared upon before the justice, it was stated to have been payable to James W. Ward or bearer. The amended declaration made the note payable to James W. Ward, omitting “or bearer.” In Carpenter vs. Billings, 2 Vt. R. 495, it is stated by Prentiss, J., that “When a proceeding depends upon the decision of the' county court, guided by the particular circumstances of the case, and. not on any certain and known rule of law, we have no control over it.” In the same case it was decided that an amendment cannot be granted, which changes the form of the action, or introduces a new count for a new. cause of action. Most other amendments it is competent for the court, in their discretion, to make, and when •made, they are not revisable by this court. The present was a plain case of an ill description before a justice, in'one particular, of a note described, though not declared on, and when the plaintiff filed his declaration in the county court, he was permitted to describe the note truly, to prevent a variance. This was correcting [198] a clerical error, which it would be proper to allow in any stage of the proceeding, the note being the document to amend by. As to the sufficiency of the declaration, which is raised by the demurrer, that is settled in the case of Moar vs. Wright, 1 Vt. Rep. 57, when this subject was most ably discussed by the judge who delivered the opinion, to which little could be added, and nothing is required. The judgment of the county court is affirmed.