Jackson ex dem. Young v. Young

1 Cow. 131

Opinion

Randall, relied on the case of James v. Walruih,

(a) and Wood v. Bulkley,(b) as decisive against the cross motion, and in support of the original one which he made. He said the defendant had violated the condition in the consent rule, which is, to appear and confess, $-c. The record was merely voidable. it was perfect, with this single exception. To avail himself of it, the defendant should have appeared and made his objection at the Circuit. The affidavit of the defendant does not entitle him to be let in on terms. ” It should state that he lias a meritorious defence, as advised by counsel.

Curia. The motion to amend must be granted.(c) The affidavit of the defendant is defective, and he cannot be received to defend. But he may renew his motion, on supplying the defect.

Spencer, at a subsequent day, renewed his motion to set aside the proceedings on terms, upon reading an affidavit of merits.

Randall, objected, that the defendant did not state the defect in the record, as the cause why he did not appear, nor is any excuse given. Had the defendant appeared at the Circuit, and objected, the record might have been withdrawn, and a new one filed, (d) The cases he had before cited, both related to informality in the N. P. record, and relief was denied to the party who made the objection, because no surprise was alledged. Besides, the error being now amended, the record is perfect.

Spencer. No affidavit of merits is necessary, where the motion is for irregularity. As to the other objection, the defendant having merits, it is to be presumed that he would have appeared, had he not thought the objection to the N. P. record a good reason for the contrary. But,

Per Curiam. Here was no irregularity. At most, the omission in the nisi prim record was matter for motion in arrest, or writ of error. ' The defendant could not, for this •reason, refuse to appear, nor is it pretended that he was misled. It does not appear that he even knew of the mistake, until'after the trial. He deliberately refused to ap pear, and although there be an affidavit of merits, he is not, under the circumstances of this case, entitled to relief.

Motion denied.

8 John.

13 id. 4g6.

Vid. Runninglon on Ej. 226 to 234. Adams on, Ej. 200 to 205, and the cases there cited. Vid. also, Lessee of Howard v. Pollock et al. 1 Yeates’ Rep. 509. Den v. Franklin et al. 2 Southard’s Rep. 850. And Lessee of Gardiner v. Wilson, 2 Yeates’ Rep. 186.

In Lessee of Smith v. Brown, at nisi prius, Union Town, May Assises, 1195, Pennsylvania, cor. M'Kean, Ch. J. and Yeates, J. the names of two lessors were stricken out of the declaration in ejectment, after the Jurors ■were sworn, and the name of Brown inserted in lieu thereof, to make the record conformable to the entry in the Supreme Court docket, the ap~ pearance of the attorney for the defendant, and the distringas, and distringas by proviso, issued for trial, though the counsel for the defendant refused to consent thereto, (1 Yeates' Rep. 513.) IXi Lyon v. Burtis et al. (13 John. 510,) the Court say: “ We do not intend to carry the doctrine so far as to amend at the trial; but we mean to say that when the plaintiff has been non-suited, for a variance in the date of the instrument declared on, or for any other variance arising from clerical mistake, we will set the non-suit aside, and give leave to amend on payment of costs. There may be cases in which the Judge, at the trial, will use a sound discretion, in suffering the plaintiff to take a verdict, and put the party to his application to the Court to make the amendment. It may be discreet to adopt this course, where the defendant has not been taken by surprize, and where his whole defence has been gone into, or where he is prepared to go into it. By allowing amendments under these guards, we think we are adopting a course of procedure that will advance justice, and get rid of technical and. more formal objections, which have no reference to the merits of the cause.” In that case the Judge refused to non-suit the plaintiff, and reserved the point, and the amendment was granted. The application was to amend as to the day of the demise, so as to lay it after the entry and sealing a lease to avoid a fine. In the case of Peaceable v. Watson, (4 Taunt. Rep. 16,) where, in an action of ejectment, an objection was raised, that the term, for which the premises were alledged to have been demised to the plaintiff; liad expired before the trial, the learned Judge, at nisi prius, overruled the objection, and the Judge’s opinion was afterwards confirmed by the Court, who said that it might be cured by amending.