State Ex Rel. Townsend v. Townsend

2 Del. 277

Opinion

By the Court.

J. M. Clayton, Chief Justice.

If the question now raised was raised for the first time, we would hear Mr. Brincldoe out, but it has been fully heard and decided. It falls within the case of the State, use Godwin, vs. Collins, 1 Harr. Rey. 216, which was fully argued and considered, and which settles the general principles applicable to amendments. And, as I was not then on the bench, I take this occasion to say that the decision there made meets my entire approbation.

Leave to amend is almost a matter of course if applied for at the earliest possible time, and no arts practised for delay. The constitutional injunction, as well as the purposes of justice, require liberality in amendments, so that causes may be determined on their merits. In this case how stands it? This is the first term. Houston swears he had spoken to and thought he had employed counsel, though Mr. Frame did not understand it so. Mr. Ridgely admits that he did not plead for Houston, and had not been employed by him. It is the case then, of a man who has not appeared ; has not been heard; and the question is whether the purposes of justice demand that he be permitted to plead the matter which he proposes to plead.

But objections are made to the form of the plea. It is said that it is dilatory, a plea in abatement. It is true that we would not grant his motion for the purpose of creating delay, or admitting him to plead a frivolous plea. What is it here ? Not any thing that creates delay or necessarily stops the action. Serjeant Williams says the plea does not necessarily conclude that the writ abate, (note 10,) but only that it be staid until the other terre-tenants be admitted. The party here applying has as yet made no defence. He has a right to be heard. We give no opinion on the question agitated as to the right to contribution, nor any opinion on any point in the cause other than that this defendant by his affidavit has shown that by no fault of his, but by mere mistake, he has not had the benefit of pleading to the cause, or of being heard, which is a right he has by the constitution and by the rules governing this court in relation to the amendment of pleadings.

Amendment allowed.