Milward v. Hallett — 1 Cole. & Cai. Cas. 261

Majority

p. 261

John Milward v. Richard S. Hallett.

Headnote

THE plaintiff had recovered a verdict against the defendant, on whose part a case had been made, and a copy served on the attorney of the plaintiff. Many inaccuracies being observed in it, a full statement was drawn up on the part of the plaintiff, and served on the defendant’s attorney, who, on receipt of it, objected to the informality of thus making a new case. The usual time for objecting to the amendments having elapsed, the attorney of the plaintiff gave notice of argument, set the cause down for hearing, and served copies of the cases he had drawn up.

Caines, on an affidavit,

to which was annexed a copy of the altered case, made on the part of the plaintiff, and also a copy of the service of notice, moved to bring on the argument, or that the plaintiff have leave to enter up his judgment.

Benson, contra,

resisted the application, contending that the case now before the court was a new, and not an amended case. That the rule allowing amendments to be proposed, did not authorise making an. entire new case, like that on which it was wished to proceed.

Caines, in reply,

hoped the court would not hearken to a distinction which really did not seem, to have any solidity. Every case differing from that first served, was, in fact, an altered, or amended case. The objection resolved itself into this, that every amendment must be written on the same piece of pa

p. 262

per which held the case served. If so, close lines, narrow margins, and great omissions, would render every case superior to amendment, and totally exclude all, that the party who made it, might please to reject. It was, however, conceived, every variation noticed, though on a separate piece of paper, was as much an amendment, as if the diversity' had been marked on the paper containing the case originally made.

Every amendment must be on the case made, or refer to the line, and page in which it is proposed to be inserted. This, not because it is less an amendment when written on a separate piece of paper, but in order to inform the judge before whom the cause was tried, where to direct his attention, in case the facts should be disputed, and not reduce him to the necessity of reading over and comparing two cases: the plaintiff can take nothing by his motion.