
    Schoonmaker against Trans.
    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 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.
    
      
      
         The practice of granting rules on justices to return the evidence has, since the provisions by statute for that purpose, (Dodge v. Coddington, 3 Johns. Rep. 141,) nearly superseded the amending the return. The rule seems to be, that wherever the testimony might influence the decision, the court will order an amendment, or that it he returned; as by inserting evidence, which had been rejected of a former trial for the same cause of action, Felter v. Mulliner, post, 384. But where the fact if returned would not vary the judgment of the court, it will not be ordered. Keeler v. Adams, 3 Caines’ Rep. 34. If the justice in making his return has been imposed on by the attorney, leave will be given, upon notice of the motion and affidavit of the fact, to amend according to the truth of the case; (Simpson v. Carter, 5 Johns. Rep. 350,) but the court will not order a justice to amend his return contrary to what he has sworn; (Keeler v. Adams, ubi sup.) nor, after a precise and specific return to all the facts in the affidavit on which the certiorari was granted, will they order him to amend his return on facts in a subsequent and supplementary affidavit; (Butler v. M‘Intyre, 2 Johns. Rep. 182,) nor will they tako notice of facts returned from hearsay, as the justice must return from his own knowledge; (Mosely v. Landon, ibid. 193,) therefore, error cannot be assigned on such a part of a return. Id. ibid. See Durkee v. Bracket, 1 Caines’ Rep. 501.
      All affidavits to amend a return as to matters of fact, ought to state then^ that the court may judge of their materiality. Leonard v. Sunderlin, 3 Caines’ Rep. 136. As to misprisions, it seems never too late to apply for an amendment. It will be granted after argument on the errors assigned, and tlie judgment of the court pronounced; (Day v. Wilber, post, 375,) so if in the errors assigned after joinder; (Moore v. Bacon, 3 Caines’ Rep. 83,) and after a rule to assign errors, a mis-statement of the form of the action may he amended by the affidavit on which the certiorari was granted. Knapp v. Palmer, 1 Caines’ Rep. 486.
    
   Per Omiam.

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.

Kent, Ch. J.

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.  