2.
Amendments at common law, independently of any statutory provision on
the subject, are in all cases in the discretion of the court, for the
furtherance of justice they may be made while the proceedings are in
paper, that is, until judgment is signed, and during the term in which
it is signed ; for until the end of the term the proceedings are
considered in fieri, and consequently subject to the control of the
court; 2 Burr. 756; 3 Bl. Com. 407; 1 Salk. 47; 2 Salk. 666 ; 8 Salk.
31; Co. Litt. 260; and even after judgment is signed, and up to the
latest period of the action, amendment is, in most cases, allowable at
the discretion of the court under certain statutes passed for allowing
amendments of the record; and in later times the judges have been much
more liberal than formerly, in the exercise of this discretion. 3
McLean, 379; 1 Branch, 437; 9 Ala. 647. They may, however, be made after
the term, although formerly the rule was otherwise; Co. Litt. 260, a; 3
Bl. Com. 407; and even after error brought, where there has been a
verdict in a civil or criminal case. 2 Serg. & R. 432, 3. A
remittitur damna may be allowed after error; 2 Dall. 184; 1 Yeates, 186;
Addis, 115, 116; and this, although error be brought on the ground of
the excess of damages remitted. 2 Serg. & R. 221. But the
application must be made for the remittitur in the court below, as the
court of error must take the record as they find it. 1 Serg. & R.
49. So, the death of the defendant may be suggested after errer coram
nobis. 1 Bin. 486; I Johns. Cases, 29; Caines' Cases, 61. So by
agreement of attormeys, the record may be amended after error. 1 Bin.
75; 2 Binn. 169.
3.
Amendments are, however, always Iimited by due consideration of the
rights of the opposite party; and, when by the amendment he would be
prejudiced or exposed to unreasonable delay, it is not allowed. Vide
Bac. Ab Com. Dig. h. t.; Viner's. Ab. h. t.; 2 Arch. Pr. 200; Grah. Pt.
524; Steph. Pl. 97; 2 Sell. Pr. 453; 3 Bl. Com. 406; Bouv. Inst. Index,
h. t.
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