
    Anderson v. Dudley.
    [October, 1805.]
    Amendment of Declaration — Issue of Nul Tiel Record. —Upon trial of the issue of nul tiel record, the court may allow an amendment of the declaration; and, if the defendant consent, may proceed with the trial.
    Records — Proof—Production of Original Record. — But if the suit be in the same court where the judgment was rendered, it is error to inspect a transcript only, instead of the original record.
    Same — Same—Same—Cause Remanded. — And in such case, if the suit was in the county court, and that judgment reversed in the district court, the court of appeals will direct the district court to remand the cause to the county court, there to be tried by the original record.
    Anderson brought debt in the county court upon a judgment in that court for ¿144. 17. 2X- and costs ; but declared for ¿144. 7. 2%. and the costs. Plea, No such record; and issue. Upon the trial of the cause, the plaintiff moved to amend the declaration, by inserting the true sum: which the court allowed : and thereupon the defendant filed a bill of exceptions, stating, “ that after the cause was opened before the court for their decision on the issue joined, the plaintiff by his counsel moved the court for leave to amend his declaration, by inserting the sum of ¿144. 2JÍ- in the twelfth line, instead of ¿144. 7. 2%.: Which amendment, though opposed by the defendant’s counsel, was permitted by the court.”
    After which, the record proceeds as follows : “And by consent of the parties by their attornies, the trial of the cause was proceeded in; and thereupon the transcript of the record of the judgment in the declaration mentioned being inspected, it seems to the court that there is such a record of the judgment as the plaintiff by his declaration hath set forth, as the plaintiff by replying hath alleged. Therefore it is considered by the court that the plaintiff recover against the defendant the sum of one hundred and forty-four pounds seventeen shillings and two pence one farthing, &c.”
    The defendant appealed to the district court: where the judgment was reversed, because “ the county court permitted the plaintiff to amend his declaration after the cause was opened for a decision of the issue joined, and that there is no such record as that stated in the declarations.”
    The plaintiff appealed from the judgment of reversal to the court of appeals.
    Cur. adv. vult.
    
      
      Amendments — After Verdict. — In Peabody Ins. Co. v. Wilson. 29 W. Va. 538, 2 S. E. Rep. 894, it is said: “In Tomlinson v. Blacksmith, 7 Term R. 132, leave was granted, upon application of the plaintiff, to amend his declaration after verdict, by increasing the damages laid, according to the truth of the case as found by the jury; the former verdict being at the same time set aside, and a new trial granted, to enable the defendant to make his defense to the demand so enlarged. So, also, in Storer v. Gordon, 2 Chit. 27, after trial and verdict for the plaintiff, the defendant was allowed to amend his pleas, and have a new trial upon payment of costs. The same liberality in regard to amendments, was allowed in Tabb v. Gregory, 4 Call 225, and Anderson v. Dudley, 5 Call 529.”
      The principal case is cited in Travis v. Ins. Co., 28 W. Va. 594 ; 4 Min. Inst. (4th Ed.) p. 712.
      See generally, monographic note on “Amendments” appended to Snead v. Coleman, 7 Gratt. 300.
    
    
      
       Judicial Writings of Record — Proof—Production of Original Record. — At common law the original record must have been produced wherever the cause was in the same court, a copy, however authenticated, being under no circumstances admissible, unless the original were lost. 4 Min. Inst. (4th Ed.) 881, citing Burk v. Tregg, 2 Wash. 216; Anderson v. Dudley, 5 Call 529.
      Same — Same—Statutory Rule. — But the statutes now provide that, a copy of any record or paper in the clerk’s office of any court or in the office of the secretary of state, treasurer or auditor, or surveyor of lands in any county, attested by the officer in whose office the same is, may be admitted as evidence in lieu of the original. Code of W. Va., ch. 130, sec. 5; Code of Va. 1887, ch. 164, secs. 3334, 3335.
      See Baker v. Preston, Gilm. 235; Ben v. Peete, 2 Rand. 539; Rowletts v. Daniel, 4 Munf. 473; Pollard v. Lively, 4 Gratt. 78; Hinchman v. Ballard, 7 W. Va. 153; Ott v. McHenry, 2 W. Va. 73; Anderson v. Nagle, 12 W Va. 98; Dickinson v. Railroad Co., 7 W. Va. 390; Peterson v. Ankrom, 25 W. Va. 56.
      Same — Same—Original Still Admissible. — It must be observed, however, that the original order book of a county court is competent evidence wherever a certified copy would be evidence; the copy being received only on the ground of convenience, to obviate the necessity of removing the original record from place to place, and not because it is better evidence than the original. Ballard v. Thomas, 19 Gratt. 14.
    
   UYONS, President,

delivered the resolution of the court, that the county court erred in admitting the transcript of the record, instead of inspecting the original record itself ; and, therefore, that the district court should have sent the cause back to the county court, with a direction to try it by the original record, and not by a transcript.

The following is the entry on the order book :

“ The court is of opinion, that there is no error in the said county court’s permitting' an amendment of the declaration as stated in the bill of exceptions, and proceeding to the trial of the issue joined, the parties having mutually consented that the trial should be proceeded in immediately ; but that the judgment of the said county court is ei'ro-neous in this, that, on the trial of the issue of “ No such record,” that court inspected only a transcript of the record in the declaration mentioned, instead of the original records of the said court, as the said court ought to have done ; and therefore that there is no error in the judgment of the district court reversing that judgment; but this court is also of opinion, that the said district court erred in not remanding the suit to the county court, there to be tried by inspection of *the original records of that court : Wherefore it is considered, that the judgment of the district court be reversed and annulled, and that the appellant recover against the appellee his costs by him expended in the prosecution of his appeal aforesaid here, to be levied of the goods and chattels of the decedent in the hands of the appellee to be administered : And this court proceeding to give such judgment as the said district court ought to have given, it is further considered, that the judgment aforesaid of the said county court be also reversed and annulled, and that the appellee recover against the appellant the costs expended by his testator in the prosecution of his appeal in the said district court: And it is ordered, that the cause be remanded, by the said district court, to the said county court, there to be tried by the inspection of the original records of that court.”  