p. 110Schoonmaker against Trans.
Headnote
If a late decision be made of which counsel is not apprised, the court will in some cases allow of its being urged as an excuse for not making an earlier application. Under special circumstances a justice’s return may be amended after errors assigned.This was an application for a rule on a justice of the peace to amend his return, by inserting the evidence[1] he overruled in a cause before him.
Smith read an affidavit showing that the cause had been brought up by certiorari, errors assigned and joinder. He sontended, therefore, the application was too late.
Jones, contra.
If we have been too late, it arises from a mistake of a decision of the last term, in which we thought the court had ruled they would order a return to be amended by -setting forth the evidence overruled, when that evidence was the only reason on which the judgment could be impeached. No report is as yet furnished of this adjudication, and the knowledge we have of it is hearsay.
We presume the counsel ignorant of the decisions of May and February terms last past, by which we allowed rules on justices, ordering them to return evidence in special cases. This therefore, is a sufficient excuse for the court to interfere at this late stage of the causo.
I dissent from this opinion. The counsel are bound to know the law at their peril. The court did not make any new rule, but only applied principles ai-read}'- known to new cases. It is a good rule, and ought to be enforced, *that after a party assigns errors, he waives all objections to the sufficiency of the return.
Motion granted.