Mitreaud v. Delassize , 13 La. 416 ( 1839 )

Eustis, J.,

delivered the opinion of the court.

The plaintiff applied to the court below for leave to amend his original petjlion, by filing a supplemental petition ; the judge refused to allow the amendment, and the plaintiff’s petition having been dismissed, the correctness of this decision is brought before us for our decision, on an appeal.

This is an action for damages for slanderous words uttered publicly by the defendant, concerning the plaintiff. The amended petition contained allegations of the falsity of the charges of which the plaintiff complained, and of malice on the part of the defendant in making them, which allegations were omitted in the original petition.

The article 419 of the Code of Practice, allows amendments, under the leave of the court, even after issue joined, “ provided the amendment does not alter the substance of the demand, by making it different from the one originally brought.”

The amendment sought to be made in this case, certainly did not alter the substance of the demand; the allegations of falsity and malice, are necessarily implied in the claim for damages.

We think the judge ought to have allowed the amendment to be made, but that the plaintiff ought to be amerced in the ’costs incurred up to the time of making it.

It is, therefore, ordered, that the judgment of the Parish Court be reversed, and that the cause be remanded for further proceedings, with directions (o the judge to allow the supplemental petition of the plaintiff to be filed on his paying the costs incurred in this case, up to the time of the presentment of the supplemental petition, and that the defendant and appellee, pay the costs of the appeal.