Randolph v. Jones , 10 Ala. 228 ( 1846 )

COLLIER, C. J.

There can be no question, but it would have been competent for the court in which the suit was brought against the maker of the note to have permitted the declaration to be amended either before or after judgment, so as to make it conform to the truth of the case. The terms of our statutes of amendment are very broad, and have always been liberally expounded; because they are remedial in their character, and intended to secure the administration of justice, upon liberal principles. They prescribe no limitation beyond which the discretion of the court shall not go, and the inquiry in every application to amend, is, whether the legal remedy of the party will be advanced; if his adversary is prejudiced, his interest may be duly protected. [The Bank of the State v. Johnson, and another, 9 Ala. Rep. 367.]

In the record of the suit against the maker, it appears, not only from the indorsement of the writ, but from an allegation in the declaration, that the note in question was payable on first day of January. These are sufficient to indicate the identity of the note there sued on, with that on which the defendant, in the case at bar, is sought to be charged as an indorser — the time when it was made, the amount, and the payee’s name all corresponding.

The plaintiff, in his declaration, did not attempt a particular description of the record of the suit and judgment against the maker; but merely alledged, in general terms, that suit had been duly brought, prosecuted to judgment, &c. To satisfy this allegation, the same strictness of proof would not be required as if the question were, whether a note specially declared on, was correctly described. There, in a case of a description liberation et verbatim, a slight variance would be fatal; but if the description was according to the effect of the writing, the variance must be substantial, in order to prejudice the plaintiff. But here, the question is not one of variance, strictly so called, but is, whether the proof supports the averment of a material fact. We have already said it was sufficient, and have but to add, that the judgment of the circuit court is affirmed.