Myers v. W. G. Lyon & Co.

The opinion of the court was delivered by Barrett, J. The motion embraced two subjects — one to amend the writ so as to show the character in which the female plaintiff joined in the suit, the other to amend the declaration by setting forth the particulars of the alleged loan of money to the defendants, constituting the cause for which the action was brought. The husband and wife were plaintiffs in the original writ. They were to be so in the amended writ. All that was done by the amendment was to show the fact of the female plaintiff being the wife of the other plaintiff. This was not changing plaintiffs or either of them, and it was proper, in order to answer a technical rule, making the coverture the ground of joining the parties as plaintiffs. The original declaration alleges a loan to the defendants as the ground of a promise implied by law, but not made in [275] fact by the defendants. The amended declaration alleges a loan of money to the- same defendants as the ground of a like implied promise. Both declarations show a cause of action in favor of both plaintiffs against both defendants for the loan of money. The purpose and need of the amendment was to avoid objection to the evidence showing what the transaction of the alleged loan was, and that by virtue of such loan the husband and wife, by technical rule, ought to be joined as plaintiffs. We think such amendment is not obnoxious to any of the objections urged against it. It is bringing no new parties and no new cause or different form of action into the suit, but is only removing ground and occasion for technical objections .that do not touch the merits of the cause of action, or the substantial grounds of the form of the action. In these respects this case differs widely from the case cited from Georgia, and in such way as to render that case no authority in this, either in respect to principle or on the score of analogy. In each of the respects in which the amendment was allowed, it was justified by the principle and analogy of cases in this State, and, but for the fact that the two amendments were, asked in the same motion, it seems hardly supposable that either would have been deemed by learned counsel as unwarranted by usage under the law governing the subject of amendments. Judgment affirmed, and cause remanded.