Colvin & Van Patten vs. Corwin, 15 Wend. 557

By the Court, Nelson, J. The opinion was expressed, and we think upon satisfactory grounds, in the case of Brace v. Benson, 10 Wendell, 215, that justices’ courts possess substantially the same power to allow amendments in the proceeding in causes before them, that appertains to courts of record. The summons was considered amendable in that case. Here the defendant, at the adjourned day, asked to amend the pleadings by adding a new plea ; the application was in effect refused by the justice, which is usually allowed in courts of record with or without terms. A difficulty that is supposed to exist, arising out of the 69th

section of the justice’s act, 2 R.S. 238,1 am of opinion is not insurmountable ; because the amendment could h^ave been permitted upon the terms that the defendant would consent to a reasonable adjournment, if necessary, in consequence of anew issue, to enable the plaintiff to prepare for the trial. This might have been proper to prevent surprise, as by the above section,where a suit is commenced by summons, the plaintiff can have but one adjournment, not to exceed eight days, and to be applied for at the return of the process, or at joining of the issue if without process.

The justice, however, may refuse the amendment, unless further time is given by the defendant. The inexperience of parties, who usually conduct the preliminary legal proceedings in justices’ courts, often claims, in the furtherance of justice, the interposition of this power conferred upon the court; and where the rights and interests of the adverse party are not put in jeopardy by the amendment, as it may be beneficially, so it should be literally exerted. It will frequently prevent manifest injustice, repeated litigation, and, of consequence, costs and expenses to the parties.

The common pleas, no doubt, were of opinion that the justice unreasonably denied the amendment; or if, as it is contended, he allowed it, then he erred in not deciding that the previous judgment was a bar to the recovery. It is supposed that-there was no competent evidence of that judgment before him. This, I think, is a mistake. He had just pronounced judgment himself, and had it in contemplation of law before him on his docket. By the 2 R.

S. 269, §245, whenever it becomes necessary, in an action before a justice, to give evidence of his own judgment before him, “ the docket of such judgment or other proceeding, or a transcript thereof, certified by him, shall be good evidence thereof.” Here the docket of the judgment was before him, and if he had concluded in favor of the amended plea, he should have deemed the proof sufficient. For these reasons, I am of opinion the common pleas were right in reversing the judgment, in point of law.

The justice of the case also accords with this disposition of it; the splitting up of small demands to multiply suits is strongly discountenanced by this court. It is unnecessary and oppressive. Judgment affirmed.