Hobbs v. Staples , 19 Me. 219 ( 1841 )

The opinion of the Court was delivered by

Shepley J.

The declaration does not allege the penalty to have been incurred contrary to the form of the statute. The judgment was therefore erroneous. Heald v. Weston, 2 Greenl. 348.

The defendant’s counsel moves to amend the declaration; and relies upon the provisions of the statute, c. 121, § 45, and the case of Cheetham v. Tillotson, 4 Johns. 499. The provision of the statute is, that it shall be lawful “ to amend his writ or complaint in any stage of the process before the rendition of final judgment therein.” A judgment conclusive upon the rights of the parties and from which there is no appeal but by error, is considered a final judgment. According to the English practice a judgment is not considered complete and final when the proper officer has marked the postea for judgment, but when the prothonotary’s allocation of costs has been completed by the insertion of the amount in the record. Blackburn v. Kymer, 5 Taunt. 672; Butler v. Bulkeley, 1 Bing. 233. In Wray v. Lister, 2 Stra. 1110, it was decided, that an amendment could not be allowed after final judgment and error brought. And in Hutchinson v. Crossen, 10 Mass. R. 251, that court decided, that it had no authority to make an amendment of the record of another court brought before it by writ of error. The statute commented upon in Cheetham v. Tillotson, differs from the statutes of Massachusetts and Maine on the same subject. It provided for amendments by the judges, “where such judgments are or shall be given, or whereunto the record is or shall be removed by writ of error.

This court only can decide upon the record as it is presented by the writ of error. It is not necessary to decide upon the other errors assigned.

Judgment reversed.