Suppose this the only point in your case, upon which we should grant you a new trial, clearly the plaintiff might then move to amend, before going down to a second trial.]
Conkling, cited Paine v. Bustin, (1 Starkie, 74,) which he said was in point, against the motion.
Reynolds, in reply, said it was not proper here to speak of the merits. As to form, he certainly did not ask the Court to go so far as they had done in Sargent v. Dennison. If he had averred the loss, he need not even have given a copy of the bond ; so that the mistake was a benefit to the defendant. Giving oyer entitled him to a copy, and he had it. The whole is a mere quibble about form. There is no pretence of the defendant being misled. To entitle him to a new trial, he should show an injury ; not a possibility of one.
[Sutherland, J.May we not allow you the amendment on the argument of the case ? Will it not be the same thing to you if allowed then? The proceedings must probably be stayed till that time.]
Reynolds. It will not be the same thing ; because the parties there camiot be put to show, on affidavit, whether the defendant was misled by the omission. We may there hear it urged that he was injured; and perhaps this will be intended in the absence'of explanation. We here call on him to show the injury; and he has a chance to speak. Besides, if we amend, it is on payment of costs ; and they will go on increasing, to the argument of the case.
[Woodworth, J.Here could not possibly have been any surprise upon the defendant; and I think you are entitled to amend.]
*126Savage, Ch. J.was also inclined to grant the amendment without farther examination; but
Conkling, expressing himself with considerable confidence that the Court would find, on looking into the subject, that they had not yet gone so far, they took the papers and delayed deciding the motion for the present; but. at another day,
The-Court said they had exáminedthe cages. The'old authorities were very strict, b'ttt'had been entirely disregarded of late. They thought that not only the case cited by the plaintiff’s counsel wotild'bear outthis amendment; but the rifle laid down’'in Lyon, ex dem. Eden, v. Burtis, (18 John. Rep! 510,' 512,) would Mly justify it.
Motion granted.(a)
Vid. 2 Archb. Pr. 235,6.