YOHE against ROBERTSON and Another, 2 Whart. 155

The opinion of the court was delivered by Kenwedy, J. The Court below, upon the trial of this cause, after the evidence had been closed on both sides, and after the arguments of the counsel had been delivered to it and the jury, permitted the plaintiffs below, to amend their declaration or statement, by filing three new counts in indebitatus assumpsit; one for goods sold and .delivered, and the other two, for money lent, &c.; which was objected to by the defendant’s counsel, and this is assigned as the first error.

If the filing of the additional counts went only to remove an objection of informality to the recovery of the plaintiffs and did not introduce any new cause of action, then I apprehend, that under the sixth

section of the act of 1806, the Court was bound to allow the-amendment. The words of the

section as to this particular, are, “ nor any plaintiff nonsuited for informality in any statement or declaration filed; but when in the opinion of the Court, such informality will affect the merits of the cause in controversy, the plaintiff shall be permitted to amend his declaration or statement, on or before the trial of the cause; and if by such alteration or amendment, the adverse party is taken by surprise, the trial shall be postponed until the next court.” ' The amendment copnplained of here, must be considered as having been allowed within the time prescribed by the act, though perhaps done near to the close of the last hour.

It was after the trial had been commenced, but being before the Court had charged the jury in regard to the law of the case, and before any verdict was made or ready to be delivered by th.e jury, it was certainly done before the close of the trial of the cause, and must therefore have been done on the trial of it; which brings it, as to time, within the express terms of the act. The remaining question growing out of this error is: Did the amendment introduce any new cause of action, which had no connection with the note declared on ?

Because if it did not, then according to the settled law on this subject, there was no error committed by the Court below, in allowing the amendment; see Cassell v. Cooke, (8 Serg. & Rawle, 268.) The declaration or statement, filed by the plaintiffs at first, was upon a promissory-note, drawn by the defendant in favour of the plaintiffs, for the payment of two hundred and seventy-six dollars, on demand, bearing date the 14th of February, 1831.

On the trial of the cause, the execution of the note by the defendant below, was incontrovertibly proved ; but then he resisted the payment of it on the ground that it was given for an illegal consideration; and adduced evidence showing a sale, on the same date of the note, of New York lottery tickets'by the plaintiffs to the defendant, amounting in price, to one hundred and seventy-six dollars, with a view of showing that they formed a part, if not the whole, of the consideration received by him for the note.

There was also evidence given, showing that the defendant had bought Union Canal lottery tickets of this state, of the plaintiffs frequently; that he was a dealer in lottery tickets; and that the plaintiffs were in the practice of advancing money to their customers : this was given by the plaintiffs for the purpose of inducing the jury to believe that the note was, as the plaintiffs alleged, in fact given for Union Canal lottery tickets, and cash lent and advanced, and not for New Y ork lottery tickets; the sale of which latter tickets being prohibited by law, within this state, would therefore, had it been shown to the conviction of the jury, that the note was given for them, have most clearly avoided it.

The evidence however, in regard to the real consideration of the note, was somewhat obscure; but upon the evidence given, the court left it to the jury to decide what was the true consideration, and if they found that the note was given for New York lottery tickets, then instructed them that their verdict ought to be for the defendant.

The inquiry of the defendant on the trial, into the consideration of the note, seems to have given rise to the notion of the counsel for the plaintiffs, that it might be proper to file the additional counts, so as to embrace what they alleged, was their original claim against the defendant, and the true consideration of the note.

Under this view of the matter, which seems not to be inconsistent with the evidence, and the nature of the controversy between the parties, so far as it can be ascertained from the evidence, it cannot be said with any propriety, that the amendment introduced “ a new and different matter—another cause of controversy,” as Mr. Justice Duncan calls it in Cassell v. Cooke.

They are in reality, the same claims that the note is alleged to have been given for, that are set forth in the additional counts: and it is clear, that if the note were taken to secure the payment of the price of the Union Canal lottery tickets, sold and delivered, and money lent by the plaintiffs to the defendant, the taking of it did not extinguish the original contracts for the sale of the tickets and the money lent, as long as the plaintiffs continued to hold and retain the note.

The tickets therefore might be declared for, as goods sold and delivered; and the money lent and advanced, be embraced in the money-counts. If the defendant had been taken by surprise, by the allowance of the amendment, he had a right to have had the jury then trying the cause discharged, and to have had it continued to the next court for trial; which the Court no doubt, would have granted, had he only applied for it.

I will here take occasion to observe further, that the act of 1806, in requiring amendments to be allowed, has not gone as far in regard to the time, at which they shall be allowed by the Court, as has been done in England, under the authority and principles of the common law.

The courts there have, after compelling the plaintiff to take a nonsuit on the trial of his cause, on account of a variance between the proof offered in support of his cause of action, and the statement of it as set forth in his declaration or bill of particulars, taken the nonsuit off afterwards, and permitted him to amend his declaration or bill of particulars, so as to make it comport with the proof of his case. See Holland v. Hopkins, (2 Bos. & Pull. 243.) Halhead v. Abrahams, (3 Taunt, 81.) Williams v. Pratt, (5 Barn. & Ald. 896; S. C. 7 Eng. Com.

L. 293.) So after a trial and verdict in favour of the plaintiff, for a sum of money in damages, that appearéd to be justly due to him, but much more than the amount of the damages laid in his declaration, he has been allowed to amend, by increasing the damages to the amount found by the jury, upon his consenting that the verdict should be set aside, and a new trial granted. Tomlinson v. Blacksmith, (7 Term Rep. 128.) Also after a trial and verdict for the plaintiff, the defendant has been allowed to amend his plea, and to have a new trial on payment of the costs. Storer v. Gordon, (2 Chitty Rep. 27; S.

C. 18 Eng. Com. L. 237.) And I do not know that there is any law here to prevent courts from going as far in allowing amendments as they have gone in England.

But then since the act of 1806, it is no longer a mere matter of will or discretion with the courts here, whether they will allow the amendments or not, if applied for on or before the trial of the cause; down to this period, the act has made it the imperious duty of the courts to allow all matters of informality to be amended in the declaration, statement, or plea, that in the opinion of the court, would affect the merits of the cause in controversy: and if refused, when it ought to be allowed, according to the requisitions of the act, it will be such error as may be corrected upon writ of error.

But amendments applied for hi like matters, after the trial or verdict of the jury has been given, are only 'grantable at the discretion of the court, where the trial has been had; and whether allowed or refused, cannot be made the subject of revision and correction upon a writ of error.

The second error assigned is, “ that the Judge erred in not charging the jury, that the defendant having impeached the original consideration of the note, and shown it to be for an illegal consideration, the plaintiff could not recover.” Now it would certainly have been error, to have charged the jury in this manner; because it would have been assuming the fact, that the consideration for which the note was given, wa’s the New York lottery tickets, instead of leaving it as a question to be decided by the jury, whose peculiar province it was, to find upon what consideration the note was given, and whether it was given for the New York lottery tickets; which the court told the jury, if it were so, was an illegal consideration.

And although there was pretty strong evidence given, going to show that one hundred and seventy-six dollars of the note were the price of New York lottery tickets, sold and delivered by the plaintiffs to the defendant, yet this evidence was not direct and positive; but consisted of circumstances, which if admitted to be true, did not necessarily require that the jury should draw that conclusion from them; though I must confess, that to my mind, it appears to have been the most reasonable, under a full view of all the evidence as we have it.

But still the Judge left this matter to the jury in a way, which cannot be considered exceptionable, by telling them, that if they were satisfied from the evidence, that the note was given upon the sale of foreign lottery tickets, their verdict ought to be for the defendant. The four remaining errors have reference to the charge of the Court, concerning the Union Canal lottery tickets; but we can perceive no error therein whatever. There was certainly “ some loose evidence,” as the Judge says, given, which tended to prove the sale of Union Canal lottery tickets by the plaintiffs to the defendant.

And the Judge left it to the jury to decide, whether the plaintiffs were entitled to recover the price of them or not; and if they were, then he told the jury, that they might allow it under the count for goods sold and delivered. It is however objected that the lottery tickets are not goods: but this objection, we think, cannot avail; for although they may not be goods in the popular sense, yet the count for goods sold, embraces also “wares and merchandizes, sold and delivered;” and that lottery tickets are treated, sold and delivered as such daily, to a great extent, must be admitted.

Any thing made the subject of traffic, and sold as lottery tickets usually are, the right of property in which, passes by the mere delivery thereof, by the seller to the buyer, may very properly be considered as coming under the denomination of “ goods, wares, and merchandizes.” The Judgment is affirmed.