Practice, Civil, Amendment of writ, Conduct of trial. It is within the discretionary power of a presiding judge to allow after a verdict an amendment increasing the ad damnum of the writ.
After the charge to the jury in an action by one woman against another for the enticing away of the plaintiff's husband and the alienation of his affections, the presiding judge, in the course of a colloquy with counsel and in the presence of the jury, stated in substance that it was competent for the jury to return a verdict for damages beyond the ad damnum of the writ, and that he understood the plaintiff's counsel to suggest that, if the amount of damages returned should exceed the ad damnum of the writ, the plaintiff would move to amend, which could be done after the verdict as well as before, whereupon the plaintiff's counsel stated that he should desire to make such an amendment. Held, that the language of the judge was not beyond his power and did not tend to prejudice the defendant.
RUGG, C.J.
This is an action of tort to recover damages for the alienation of the affections of the plaintiff's husband by the defendant. At the close of the charge there was a colloquy between the judge and counsel the substance of which was that the plaintiff's counsel desired to have the cause go to the jury with the understanding that if a verdict was returned in excess of the ad damnum of the writ he should ask leave to amend the writ. This course was satisfactory to the presiding judge.
It is legally possible to amend in this regard at any time before judgment. R.L.c. 173, § 48. The allowance of such an amendment, even after verdict, rests in the judicial discretion of the court. Ellis v. Ridgway, 1 Allen, 501. Luddington v. Goodnow, 168 Mass. 223.
There was nothing in the language of the judge beyond his power or tending to prejudice the defendant.
Exceptions overruled.