
    Cornelius O’Flynn v. Jabish Holmes and others.
    Whore, six months after errors had been assigned in this court, the defendant in error obtained an amendment to the record in the court below, with the view to obviate the errors assigned, and then moved this court for an order for a further return to bring up this amendment — Held, that he was too late in his action, and the application should be denied.
    
      It seems that the proper practice, in such case, would be to apply to this court on affidavit showing the reasons for the amendment, to remit the record for that purpose; and this court can then judge whether the case is a proper one to permit an amendment with a view to affect proceedings already taken in this court.
    
      Heard and Decided November 29th.
    
    Error to Wayne circuit.
    The return to the writ of error was filed in this court April 1, 1859, from which it appears that judgment was rendered in the court below, November 26th, 1858, against plaintiff in error. The declaration was in assumpsit on the common counts only, and judgment taken by default. Errors were assigned May 24th, the principal» one being that the damages were assessed in the court below by the clerk, instead of by the court or a jury.
    
      D. J. Davidson, on affidavit showing that on October 29th, 1859, defendants in error had obtained an amendment of the record cf the court below, so as to show that the plaintiffs’ damages were asssessed by the court, moved for an order for a further return to the writ of error to bring up this amendment.
    
      Holbrook & Bishop, contra.
   Bv the Court:

We think the defendants in error too late in their action, and the motion must be denied.

And we think also that where a party, after return has been made to a writ of error, desires an' amendment to the record of the court below, for the purpose of taking advantage of the amendment here, he ought to first apply to this court for leave to have the record remitted for the purpose of amendment, and make a showing by affidavit of the reasons for it, that we may see whether the case is a proper one to allow an amendment with a view to affect proceedings already taken in this court.  