The opinion of the court was delivered by
Rogers J.Great liberality has been manifested by the courts of this state in allowing amendments before trial, when it appears that such indulgence may contribute to promote substantial justice. Formerly, suitors were much perplexed by writs of error, brought upon very slight and trivial grounds, as misspelling, or other .mistakes, all which might be amended at common law, while all the proceedings were in paper, for they were then considered as only in fieri, and therefore subject to the control of the courts. But when once the record was made up, it was formerly held, that by the common law, no amendment could be permitted, unless within the very term in which the judicial act so recorded, was done; for during the term the record is in the breast of the court, but afterwards it admitted no alteration. Co. Lit. 260; 2 Burr. 1099. But now the courts are become more liberal, and when justice requires it, will allow of amendments at any time while the suit is depending, notwithstanding the record is made up, and the term past; for they at present consider the proceedings as in fieri, till judgment is given, and therefore that until then, they have power to permit amendments by the common law; but when judgment is once given and enrolled, no amendment is permitted in any subsequent term. 3 Bl. Com. 406. The amendment which was permitted by the coart in this case, was allowable at the common law, and did not fall necessarily under the act of 1806; the effect of which is to allow amendments after swearing the jury, as fully as they could do at common law before that period. Under the act of 1806, it has been repeatedly held, that the amendments prescribed are mandatory, and not discretionary; and for that reason they have been recognised (where amendments have been allowed or refused,) as subjects of error in many cases. But when the amendment is at common law, it rests in the sound discretion of the court; who may impose on the party asking the amendments, proper and equitable terms and conditions, according to the particular circumstances. Burk v. Huber, (2 Watts, 306.)
*137But aside of this objection, the amendment was properly allowed; the plaintiff had filed the common money counts, and leave was given to file a special count, obviously referring to the same transaction. The case of Cunningham v. Day, (2 Serg. & Rawle, 1,) is in point. In Cunningham v. Day, the declaration was in indebitatus assumpsit, for money had and received. On the trial, it appeared that the plaintiff gave the defendant a mare, and twenty five dollars, in exchange for a horse; the defendant sold the mare for a tract of unseated land and twenty-five dollars. It afterwards turned out that the mare was stolen, and was.purchased by the defendant without knowledge thereof, and the plaintiff was obliged to deliver her up to the owner. It having been decided by the court, that on the money count, the plaintiff could only receive $50, without interest, which the defendant had received from the plaintiff, the court permitted the plaintiff to amend his declaration by adding a new count, founded on the special contract of the parties. The amendment was allowed on this principle, that while it was never intended to permit the plaintiff to change the cause of action, yet any amendment short of this, was within the letter and spirit of the act, whether in matter of form or matter of'substance, affecting the merits of the case. In actions ex contractu, so long as the plaintiff adheres to the original instrument or contract, on which the declaration was founded, an amendment making an alteration in the ground of recovery, on that instrument or contract, or of the mode in which the defendant has violated it, is admissible. Coxe v. Tilghman, (1 Whart. 282.)
There is nothing in the second and third errors: for such proof was made of the identity of the check, as to justify the court in permitting it to be read, and if read, in leaving it to the jury to decide, whether it was the check to which the witness referred. The witness was present, when a check for $150, drawn by Warnet Myers, was presented by Caldwell, the defendant, to Remington, the plaintiff to change. He heard Caldwell say, that he would be responsible for the bill, upon Remington’s refusing to change it, and that he might take the amount of his bill out of it. Remington, in the presence of the witness, paid $75, and gave him a check for the balance, after deducting his bill. Caldwell afterwards stopped at Remington’s, and told him if he would present the check on a certain day, he would be paid. He afterwards heard Remingtom say to Caldwell, “ you ought to pay the check,” to which Caldwell answered, “ no, you had the check on your own responsibility, and I think you ought to lose it.” This was the testimony in chief, in relation to the check, which was produced and shown to the witness. On the cross-examination, the testimony on the question of identity, was undoubtedly weakened, but was not so entirely overthrown as to make it the duty of the court to withdraw it from the consideration of the jury. There may have been, it is' true, another check of a different *138date, for the same amount, drawn by Myers, in favour of Caldwell; and if this had been shown, it would have altered materially the aspect of the case. The witness mistook the date of the note, but this was a circumstance merely, for there is no subject of inquiry in which persons are so apt to be mistaken. It was immaterial that the witness had never, seen either Caldwell or Myers write, if there was other proof of identity; and it was by no means conclusive against its identity, (after what was proved in the examination in chief,) that the witness was unwilling to swear that he did not know this to be the same check, except that he never presented but one check of W. Myers at bank for $150. It may be proper to add, that there was no proof of any other pecuniary transaction of the same kind between the parties, and the probability is, that nothing of the kind ever took place between them. In such a case, it is not requisite that conclusive or even very strong proof should be given. Slight proof may, under the circumstances, be all that a court and jury may require -of the fact of identity. The evidence is referred to the jury to decide, and the party has this security, and in most cases it is an ample protection, that any mistake of their’s may be corrected on motion for a new trial. This course was pursued by the court, and the jury have decided not only that there was some evidence, but that it was sufficient to convince them, that the check was the same, for the recovery of which, suit was brought.
Judgment affirmed.