Mumford v. Stocker

1 Cow. 601

Opinion

Curia.

It is a sufficient answer to the motion for judgment as- in case of nonsuit, that no issue appears to have been taken on the special pleas.

In support of the motion to set aside the default for want of a plea, it is insisted, that-the debt in the declaration varies in- amount' from the ac etiam, but we cannot listen to such an objection from the defendant, at any stage of the proceedings-. It is very doubtful, whether even the bail' would be heard on their motion to be discharged for the vanance. They could suffer no injury, as they would probably not be liable beyond the sum in the ac etiam.

(a) We have examined the' cáse in Term Reports, (b) to which the counsel referred u's, and.it is clear against the objection, as coming from the defendant; and it is enough that the bail do not move.

The defendant’s attorney was right in disregarding the , , . „ i , , , , , , i second declaration ; for no rule to amend had been entered. He pleaded several pleas to the first declaration, some of them special ; and before any default, for not replying, was entered, the plaintiff’s attorney took his rule to amend, and filed and served a third declaration, with notice of the rule to plead, upon which the default was taken, the-defendant’s attorney relying upon this also as irregular. It is supposed to be so, upon two grounds ; one, because the rule did not specify the particulars in which the amendment was allowed ; the other, that a new count was added to the declaration. The 3th rule of April term, 1796, provides that the plaintiff may, at any time before the default for not replying shall be entered, if the plea shall be a special plea, amend the declaration. This is of course, and without costs. The second declaration did not stand in the way, It was irregular, and properly treated as a nullity by both, parties. No default for not replying was entered, and the plaintiff was in season with his rule. We do not think it necessary that this rule should specify the proposed amendments. He may amend his declaration in whole, or in part, as he chooses. It is distinguishable from a special application to amend, where the motion may be successfully opposed, or various terms imposed according to circumstances, and the nature of the amendment sought. The third declaration was served within 20 days after the pleas received, and before the default for not replying was entered, so that the amendment was in time, either within the 8th or 9th rules of April term, 1796; that is to say, whether-the defendant had pleaded special pleas or the general issue.

It is not necessary to say, whether the plaintiff may, or $nay not add a new count by way of amendment; for he has. not attempted this. He has merely altered his first count. The default is regular ; but as there is an affidavit of merits, we set it aside on payment of costs.

Rule accordingly.

Vid. Tidd. 235, R. E. 5 Geo. 2. Reg 2. Lofft. 545. Doug. 330. 8 T. R. 28-9. 1 East, 90.

Turning v. Jones, 5 T. R. 402.