
    
      SINNET vs. MULHOLLAN & AL.
    
    West. District.
    
      August 1814.
    If petition be amended by inserting the plaintiff's residence, no time to answer.
    
      Porter, for the plaintiff'.
    This case comes upon a bill of exceptions, which states that as the case was called up for trial in the Court below, the attorney for the plaintiff [the appellee here) . . ... moved to amend the petition by writing the resi-d£nce of the petitioner, which it seems had been omitted in the original petition. On the granting of this amendment, the defendants moved for further time, to answer, which was refused by the Court, and that refusal is the alledged error, which this Court is called on to correct.
    It will be shewn, that no error has been committed, or that if there was, it is not an error of that description, for which this court can reverse the judgment given in the District Court.
    I. Th e amendment raised for by the plaintiffs counsel was one of mere form—it neither altered the nature of the action, nor introduced new matters on the pleadings. Every allegation in a petition, ■which, on a general denial being put in, does not require proof by the plaintijf is an allegation of form. Nowit has never been required of the plaintiff to prove his residence as alledged, in any court of this state, on either the general issue being plpaded alone, or combined with special pleas in avoidance. The delay, therefore, that was asked from him, only tended to embarass the administration of justice : time to answer was unnecessary, J . Y when nothing of the substance was in fact altered.
    But, the refusal of the Court would not have been error even at common law, a system for more technical than ours. In the courts of England on an amendment to a declaration in matters of form no imparlance is granted and the plaintiff is not required even to pay costs. Fide Field's Practice, 653.
    , II. Bu t again—If any error was committed it was in “a matter of form” and such an error cannot be the ground of reversal in this Court.
    The act of the State Legislature, 1813, chap. 18, sec. 13, enacts—“ That no decreee or judgment of the inferior courts shall be reversed for want of form either in the judgment or proceedings.” This does away all difficulty, in the ques- ' tion, as it will be impossible to shew that the amendment made here was at all connected with the merits of the question in dispute between the parties.
    
      Baldwin, for the defendants.
    In this case the defendants in the District Court claimed and were entitled to time to answer over, upon the plaintiff’s amending his petition.
    It is a general rule and one founded on reason and justice that when the plaintiff is permitted to amend, the defendant.has aright to answer to the amendment—as otherwise the plaintiff might intentionally omit some important allegation which after the defendant had answered he would insert by way of amendment and which the defendant would, be prevented from repelling by -any proof* as it would not be denied by the answer under the principle that the allegata et probata must keep even pace. It is also a rule equally well founded, that when one party appeals to the discretion of the court for a favor, the indulgence granted to him ought to be extended to his adversary—it ought to be reciprocal—-short of this would be partiality.
    The amendment of the petition was material or not—if not material, why make it ? If it was material (and the plaintiff by making it, admitted it to be) it was to add some statement without which he could not maintain his suit—and it was restricting the defendants in the right and privilege of denying that new allegation, so important to the plaintiff. It is true that the amendment: only went to insert the plaintiff’s place of residence and that the defendants had pleaded payment—but this did not alter their right to answer over, if any case would occur wherein a new answer could avail then under such a plea,, because the Court in granting or refusing amendments are to act upon general principles and take into consideration such cases. Now it might have been true that the 'defendants gave similar notes to men of the same; name—-to one of which the plea of payment might Eipply, but not to the other. Under our statute a technical mode of’pleading is not observed and the defendants, according to the indulgent and rather loose mode of proceeding of the District Court, might, under this plea, have introduced evidence of fraud,1 want of consideration, set off, &c. and of which they were deprived by changing the plaintiff—and of which they could have availed' themselves under the original petition.
    The defendants below by demuring to the petition could have arrested the plaintiff’s proceeding, until it was amended—after which they would liave been entitled as a matter of right to answer over—and though this was hot the ’course pursued, as the defendants might, and no doubt did, ■consider it to their advantage to wave the demurer and plead to issue, yet as the plaintiff amended, tire defendants ought to have had the same time to amend, or to put in a new answer, as they would have had upon a demurer sustained. -
    Moreover, how could the‘defendants know: what the amendment was, until they had time to look at the petition as altered—Which it appears, by the bill of exceptions returned with the record, - was not granted, as the amendment was made when the case was called up for,trial and ho delay whatever was granted them ? But these observa* lions out of view, the appellants believe they may with -safety rdy upon the general and welt esta-Wished rule that when the plaintiff is permitted te» amend Iris petition, the same indulgence oughg to be extended to the defendant and that the Court erred in refusing it. lit. session of the Legist Council, chap. 26. 1 .Tidd's Prac. 153 4, 5, 6. 1 Martin, 205—Aston vs. Morgan. Washington, 365—Cos ley, executor of Loudon vs. Hill. 1 Johnston's Cases, 248—Holmes vs-Lansing.
    
    
      Porter, in reply.
    All the arguments respect-' ing amendments, urged by the counsel on the other side, would be correct, and have an application here, if the amendment prayed for and. accorded by the court had been a material one- The reasoning by which it is attempted to be shewn to have been so is founded on remote possibilitiesr which.can never form the ground of a legal judgment., But the appellants here by their pleadings» acknowledged the plaintiff’s residence not to be material. To a petition, vpthout any place being alledged as the domicil of Sinnet, they plead? payment. What was that, but in fact saying that no matter where he lived, they had already paid him ? This shews they were perfectly aware of the person, and destroys all the reasoning, “that there might be two persons of that name, that they might have given two notes, &c”.
    Th e case from Washington, is one of a material amendment made, and that from Johnson on-
      ij presses, that the Supreme Court of New-York, lias estábfis&sl a different practice from the English. Bat the superior good sense of the latter is too obvious, to require any aid from argument.
    On the whole it is hoped the judgment, of the Court below will be affirmed. , -
   By the Court.

This suit is brought by» the appellee, upon a note of hand, subscribed in his favour by the appellants. The appellants have answered by pleading payment. At the time of the trial, the plan tiff’s counsel moved for leave to - amend his petition, inserting the residence of the piaiiitiff; and the Court having granted if, the defendants mbved for time to answyr over. This being refused, on the ground that the amendment was immaterial and not such , as required a new answer, the appellants excepted to that opinion, and on that exception the case is brought up before this Court. , .

It is a general rule, and one certainly founded on principles of justice, that where permission is given to one of the parties to amend his pleadings the other has a right to answer over or reply. But the amendment must be such as may require a reply or answer. If it be insignificant and has nothing to do with the issue, if it be mere matter of form and leaves the case in the same situation in which it was before, if it be evidently of such a - # , ■ j /nature that no additional allegation on the part of the other party can possibly arise from it, it would, be worse than nugatory to make such an amendment the pretext of a delay in the trial of a cause.

In this particular case, the amendment was not only immaterial, but it was with respect to the defendants no new matter. If the expression of the residence of the plaintiff is at all necessary, it must be to designate iivsuch a manner as to enable the defendant the better to know the person, who sues him. But here it is evident, from the manner in which the defendants did answer, that they knew the plaintiff well and wanted not any information about his residence to ascertain who he was.

Upon the whole, the application made in .this case to obtain leave to answer Over was entitled to no regard, and the District Judge did right in overruling it. ♦

It is, therefore, adjudged and decreed that the judgment of the-District Court be affirmed' with costs.  