Cummings v. Buckfield Branch Rail Road , 35 Me. 478 ( 1853 )

Appleton, J.

— If any error arises in misdescribing a contract or judgment in suit, it is a matter of discretion on the part of the presiding Judge, when and on what terms to permit its correction. When the mistake is corrected, it is not to be viewed as a new cause of action but as the correction of an error in the statement of the one declared upon. The exercise of this discretion in matters legally amendable, is not the subject of exceptions. If it were, still the amendment was properly allowed in this case. Stanwood v. Scovil, 4 Pick. 422; Greene v. Jackson, 15 Maine, 136; Smith v. Palmer, 6 Cush. 513.

The judgment in suit was recovered at the March term, 1851, of the late District Court, and the execution issued-thereon has in part been satisfied. By R. S. c. 115, § 105, “ an alias or pluries execution may be issued within three years next after the day in which the last preceding execution was returnable, and not afterwards. As the plaintiff might have renewed his execution, it is insisted that he cannot maintain this action. But such is not the common law, and that is not changed by any statutory provisions. By § 96, of the chapter before referred to, costs are not allowed when an action is commenced upon a judgment on which at the time of its commencement an execution might have issued, except in the case of trustee process, but the suit is not prohibited. The plaintiff is therefore entitled to judgment for the amount due.

Exceptions overruled.

Judgment on the verdict.

Shepley, C. J., and Tenney, Wells and Howard, J. J., concurred.