A. Brady & Co. v. Cryer ( 1885 )

Mayo, J.

Amendments both to the petition and answer are in the discretion of the Court, “ provided they do not alter the substance of the demand or defense.” As a general rule, anything may be set up by way of amendment which could have been embraced in the original petition or answer without conflicting therewith ; a party sued on account, after filing a general denial, may amend and set up error or want of consideration.

2. An acknowledged account is not such an -unconditional promise to pay a specific sum as, under C. P. 494, prevents the defendant from obtaining trial by jury without the affidavit prescribed in said Article.

3. Under C. P. 907, the damages to be inflicted for frivolous appeal are the penalty for the delay caused by the appeal; but where the appeal is merely devolutive, it causes no delay and no damages can be allowed.