Thayer v. Farrell

11 R.I. 305, 1876 R.I. LEXIS 9

Opinion

Dureee, C. J.

Our statute, Gen. Stat. R.1. cap. 199, § 5, provides that the court may at any time permit either of the parties to an action to amend any defect in the process or pleadings. The power is lai'ge, but not unlimited. It authorizes the amendment of defects, not the substitution of a new action. Wilcox v. Sherman, 2 R. I. Rep. 540. In this case the declaration sets forth a contract with the plaintiff; if amended as proposed, it would set forth a contract with other persons and substitute them for the plaintiff; the action would no longer be tbe same. We think the amendment should not be allowed. The statute of Mississippi, under which Tully v. Herrin, 44 Miss. 626, was decided, differs from ours. It allows any amendment designed “ to bring the merits of the controversy between the parties fairly to trial.” The motion is dismissed.