The opinion of the court was delivered by
Gibson, C. J.Amendments at the common law, being reducible to no rule, but grantable as they happen to"appear conducive to justice, are not subject to revision on a writ of error. But statutory amendments being demandable of right though involving the exercise of a legal discretion, are constantly inquired of here; as under the act of 1806, the power conferred by which is no further restrained than to prevent the introduction of a different and distinct cause of action. The rule seems to be, that the plaintiff is not to have recourse to a new subject or transaction; and according to that the ground of action in slander would remain the same, though different words were substituted, if importing a charge generieally the same. Here however there was no cause of action in the derelict count, the import of the term “common libeller,” the only actionable words laid, being qualified by the context so as to mean one who, in popular language, perhaps peculiar to our own state, is in the practice when called to account, of giving a libel; in other words, a written admission of the falsity of a story propagated by himself. This peculiarity was not sufficiently adverted to in An*67drew, v. Koppenheaffer, 3 Serg. & R. 255, where the obnoxious words, I am now convinced, were used in that sense. As then the substantial part of the cause of action was omitted in the present case, it seems to be one of those which the legislature had especially in view; and if the count were not amendable, every slip which leaves the subject of the demand imperfect, would be irretrievable. The proper limitation to this is, thatsuch a slip would afford no pretext to introduce a cause of action which belongs to a class entirely different from the one apparently attempted.
In regard to the remaining points, it is clear that no supplemental affidavit could be received to supply the word “firmly” omitted in the original. But it is also clear, that taking out of court the eosts that were paid in on the appeal, was a confirmation of it, and a waiver of that undoubted defect. The argument is, that the appeal being a nullity, the appellee ought not to be prejudiced by accepting what belonged to him in any event, either by virtue of the appeal or the award of the arbitrators. The answer is that the appeal, so far from being void, was available for every purpose till it was avoided by the judgment of thecourt; and that while it was pending, the party was entitled to take out the costs on no other terms than those on which they were paid in, and in no other character-than that of an appellee. By receiving the costs from the prothonOtary, then, he waived all objection.
Judgment reversed, with direction to reinstate the appeal.