#### Ames & Hoyt, Plaintiffs in Error, *vs.*Gatey, McCune & Co., Defendants in Error.

WRIT OF ERROR TO THE DISTRICT COURT OF RAMSEY COUNTY.

Gatey, MeCune *&*Co., the Plaintiffs below, brought their suit against the Defendants, Ames *&*Hoyt, to recover the value of certain boilers and mill machinery furnished them by the Plaintiffs.

The Defendants answered, alleging defects in the boilers, &c., and charging damages, upon which an issue was joined, •by the Plaintiffs’ Reply. The testimony of the Plaintiffs was taken by commission.

Upon the trial of the cause, and after the introduction of the Plaintiffs’ evidence, the Complaint was amended (upon terms) upon motion, by inserting certain words, “ to make the Complaint conform to the evidence.” A verdict was returned by the. Jury in favor of the Plaintiffs. A motion for a new trial was made on behalf of the Defendants, which motion was refused, and the Rill of Exceptions forms part of the record in this Court.

It appears from the Rill of Exceptions, that the Commissioner who executed the Commission to take the testimony of *388the Plaintiff, “ had not appended his certificate to the Deposi- “ tion of *each*of the said witnesses as required by Pule 13 of the “Pules of the said District Court, and had only appended a “ certificate at the close of the last Deposition.”

The Defendants’ Counsel objected to the reading of the Depositions on the trial of the cause, for the foregoing reason: the objection was overruled, and exceptions taken and noted.

Points and authorities of Plaintiffs in Error:

*First.*The Court erred in receiving the commission and the testimony introduced thereby, because the certificate of the commisssoner was not appended to each deposition, and because the commissioner omitted to certify that the several depositions were signed by the witnesses in his presence. *Vide Rev. Stat., Chap. 95, Sec. 28; 8 Pickering’s Rep.,*516; *Rule*13, *Rules of District Coivrt, M. T; Packson vs. Hobby,*20 *Johns. R.,*357 ; *Smith vs. Randall,°8 Hill R.,*495 ; *Flemving vs. Ilolenbeck,*7 *Badboivr R.,*271; *Among vs. Fellows, 5 Mass. R.,*219 ; *Dradsheet vs. Baldwin,*11 *Mass. R.,*229 ; *Ilallum vs. Field,*23 *Wenclall,*38; *Bailey vs. Goelcran,*2 *Johns.,*417;, *Davis vs. Allen,*14 *Pick. R.,*313; *Mass. Rules Wo.*11, 16 *Mass.*73; *Barnes vs. Bull et. al.,*1 *Mass., ’IS*; *Pettibone vs. Dencmger,*4 *Wash. O. O. R.,*215, 219; *Bodenim vs. 3font-gome/ry,ibid.,*186; *Brideonanvs. Ki/rk,*3 *Oranch,*293; *last three cases cited in Cowan & Hill’s notes to PMlTAp’s Bvidence, Sd Ed.,Pw't2d.,p.*670, 672; 2 *U. S. Rev. La/ws,p.*67, 69; *Doane, King c& Co., vs. McCwnen dh Co., District Comí, First District; Corroerse vs. Ba/rrows (& Prettymau, District Cow't, M. T., Third District.*

*Second.*The Court erred in receiving testimony of the distinctive value of the articles enumerated in the complaint, and the error was not cured by the instruction of the Court to disregard it. *Monell vs. Parmala,*1 *Comstock, 519; Myer vs. Molcon,*6 *Hill,*296; *Reporter’s note, cmd case there cited; Clark vs. Vorce,*19 *Wend.,*232.

*Tlvi/rd.*The Court erred in allowing the amendment, as it substantially changed the claim of the Plaintiff. *Rev. Stat... v.*340. *Sec..*90.

*389Points and authorities of Defendants in Error:

*First.*The depositions of Samuel Gatey, John S. McCune, and Girard B. Allen, introduced on the part of the Plaintiffs below, upon the trial were competent evidence in the cause, and were properly received as such by the Court below. *See Mem. Stab., p.*475, *See.*29; 2 *Metcalf's Mep.,*522, *Amherst Marik vs. Moot et. dl.j*20 *Pickerring Mep.,*441, *Meed vs. Board-■mam;*20 *Pickering Mep., M-uckhead et. al.;*1 *Washington Mep.,*372, *Mamet vs. Watson;*4 *Johnson Mep.,*130, *Molte vs. Van Mooten.*

*Second.*The testimony given in chief on the part of the Plaintiffs below, to prove the value of the property, was properly received and admissible, because the same was competent and received before the complaint and answer were amended, .and after the pleadings were amended by leave of the Court, to conform to the proofs contained in the depositions, the former evidence was excluded by the Court, and the jury instructed to wholly disregard it, because immaterial and unnecessary in the cause, and because the evidence contained in the written depositions, fully proved the cause of action and justified the verdict of the jury. *See Mev. Shot., p.*340, *Sees.*86, 87, 90, 92 ; 12 *Wendell, p.*41, *Oreary vs. Sprague &*Grow/ *Same, p.*•504, *Beebe vs. Bull.*

*Third.*Allowing an amendment to the pleadings upon the •.trial was purely a matter resting in the .sound discretion of the Court below, and that discretion was properly exercised in the cause. *See Mev. Stat.,p.*340, *Secs.*86, 87, 90, *amd*92 ; 6 *Hill's Mep.,*291, *Hill vs.*Stocking7 *Wendell's Mep.,*345, *Meed vs. Brahe.*

*Fowdh.*The verdict and judgment below was fully justified and warranted by the evidence and law of the case.

Brisbin & Bigelow, Counsel for Plaintiffs in Error.

Ames & Yam Etten, Counsel for Defendants in Error.

The judgment of the District Court was reversed, and a new irial ordered, upon the ground that the Commission was not ¡executed in accordance with the requirements of Bule 13 <of the District Court. (See Appendix.)

No opinion on file.