Clark v. Ward

73 Mass. 409

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1856
• Status: Published

Opinion

By the Court.

This is a point of practice of some importance. A new declaration was filed, without leave of court, although there was one in the writ. The court, without considering the demurrer, allowed the plaintiff to go to trial on the new declaration. This cannot be treated as an allowance of an amendment; for the court expressly ruled that no motion for leave to file it was necessary. The learned judge seems to have been of opinion that there was no declaration in the writ. It is true that the first declaration was clearly insufficient. Lee v. Kane, 6 Gray, 495. But we think that, when one declaration is inserted in the writ and filed with it, a new one cannot be filed, except by amendment; and that a motion to the court was necessary. Exceptions sustained.