Wilber against Day

Wilber against Day. Ia error on certiorari, the costs of only the general assignment to be allowed. If the error he from a clerical mistake in transcribing, and it be assigned for error, but the defendant do not apply to amend till after argument, it will not be allowed without payment of costs. Simonds, for the plaintiff. A rule was last term ordered to show cause against the amendment allowed in August last. Ante, p. 139. But on search no rule has been en-: tered; am I, then, to show cause against what does not exist ? Per Guriam. We remember that a rule was granted, and you yourself cannot - have forgotten it. Cause, therefore, must be shown. Simonds. By the decision of August, the court pronounced tbe error for which, they reversed the judgment to be matter of substance. The determination, then, has been on the merits, and, therefore, neither by the statute, nor the common law, can an amendment be allowed. Woodman v. Inwen, Barnes, 9; Saunders v. Lenori, 8 Salic 81, is in point. In error,from the court of Northampton, the record removed was prceceptum fait instead oí prceceptum est in the venire, and messes instead of misis The draft below was right, but as it was only a private paper, the court refused to amend the record by the draft, though it was, as in the present case, sworn to be right below. Philips v. Suish, Cro. Jac. 13, shows that misprision in substance is not amendable. If, however, it be ruled otherwise, then all costs must be allowed. Foster v. Blaclcwell, Barnes, 7 Gold, contra. The courts have in modern days been very liberal in amendments, and have allowed them after argument and judgment on the point agitated. • Tippet v. May, 1 Bos. & Pull. 411; Griffiths v. Eyles, ibid. 413; De Symonds v. Shedden, 2 Bos. &Pull-, 153; Morris v. Langdale, ibid. 284; Brigden v. Par Ices, ibid. 424; Sharp v. Stacy e, Barnes, 5; Mayo v. Archer, 1 Stra. 513; even in case of a special verdict. Smith v. Fuller, 2 Stra. 786. Wherever there is any thing to amend by, the court will permit the. amendment asked. Greenv, Rennet, 1 D.&B. 782. Its allowance is in the discretion of the court. This is a proper case, for the assignment is in a matter known to be untrue; not arising on the facts, but on transcribing the record, and after ceritorari brought. It appears, therefore, that when it was sued out *there was no actual error. The favor of the court will not surely be denied in a ease originally right; which continued so when the plaintiff took his exceptions, and is become otherwise only by an ex post facto circumstance, never relied on, nor even contemplated by him. KENT, Ch. X What do you say as to the costs why they should not be paid up to this day ? The amendment funnurly ordered said nothing as to them. Yon have made an incorrect return. Your excuse is that it was a mistake. Is this a reason for not paying costs up to this time ? Sup pose the question bad arisen in August term. Gold. I readily agree that amendments are generally on payment of costs. But circumstances create exceptions. In Cromwellv. Grumsden, 1 Ld. Rayrn. 335, the formal con elusion of a special verdict was rectified without costs. Where justice and equity is against the party wishing to avail himself of an error, costs are remitted. Therefore, where to a sham plea the plaintiff filed a bad replication, an amendment, without costs, was allowed after demurrer argued. Sobmons v. I/yon, 1 East, 369. It was done in Be Symonds v. Shedden, 2 Bos. & Pull. 153, and Bell v. Be Cosia, ibid. 446, though no such special reason existed. The only reason why costs are given, is on a supposition that there was error when the writ was sued out. Wilkinson v. Meyer, 8 Mod. 232. As that was not the case costs ought not to be allowed. Simonds, in reply. The whole reliance as to being excused costs, is on the defendant’s having made a correct draft. Suppose a correct plea drawn, and an insufficient one filed, would it prevent costs on a demurrer, that the defendant’s counsel had a good draft at home ? He ought to look at what is on file. Besides, the record shows this error was assigned twelve months before the case was argued. Why did not the defendant then move to amend? If the inattention of the defendant give occasion for error, ■it can be rectified only at his expense. In Rees v. Morgan, ■3 D. & E. 349, the defendant in replevin, after a verdict for him, and damages to the amount of the rent claimed in his cognizance, neglected to have found either the amount of the rent in arrear, or the value of the cattle distrained; this, as being the inevitable consequence of the verdict, was permitted to be amended by entering a judgment pro retorno hahendo. The court, however, ordered it on payment of costs. Such, it is presumed, must be the decision here. See ante, 116, n. (a.) By the common law amendments were allowed; but then the party was to pay a fine for leave to amend, (like a fine pro liemtia concordandi,) an amercement being due to the king for ill pleading. By the statute,of Marl-bridge it was enacted, that, de caitero fines non capiantur pro pulchre plact-tando ; that is, for leave to amend vitious pleading; as therefore the statute took away the fine, but the grievance was still the same to the opposite side, which before, on the principle of nemo his, pro eodem delicto, pmiri debet, received no compensation, it was held but reasonable to give costs when the offence would otherwise go unpunished [MAJORITY — *Per Curiam.] *Per Curiam. We think the justice ought to have leave to amend his return, in respect of the oath administered to the constable who had charge of the jury. This, however, though on payment of costs, must be of those on the general assignment of errors only, and of the costs subsequent to that assignment, down to the giving of the opinion of the court in August last. In'making up the paper books, therefore, costs on the general assignment of errors are to be allowed, rejecting the long list of the other errors assigned. But as the defendant has given occasion for this application, the plaintiff may discontinue without costs; neither party to have any costs against the other on the mo tions to amend. Buie absolute. This was afterwards taxed by Kent, C. J., at 4 folio. That, it is presumed, means since August.