Ellis v. Ridgway , 83 Mass. 501 ( 1861 )

Bigelow, C. J.

The award of the referees did not exceed the submission. The matter at issue between .the parties when the rule of reference was entered into was, whether the defendants owed the plaintiff the amount specified in the bill of particulars. This was the precise question submitted to the referees. The award expressly finds that the sum awarded is on the cause of action declared on, and it does not exceed the amount of the items annexed to the declaration, with interest thereon. It is clear, therefore, that the arbitrators did not go beyond their authority, but adjudicated on the exact case submitted to them.

The amendment of the ad damnum was rightly allowed, and was within the authority conferred on the court by Gen. Sts., c. 129, § 41, which provides, that the court may allow amendments at any time before final judgment in any matter of form or substance which may enable the-plaintiff to sustain the action for the cause for which it was intended to be brought. Such an amendment has been often allowed in our practice. Danielson v. Andrews, 1 Pick. 156. Cragin v. Warfield, 13 Met. 215. Exceptions overruled.