1 Blackf. 170 | Ind. | 1822
The declaration in this case contains several counts in assumpsit; but it appears from the record, that theprincipal reliance must have been placed on the second. That count sets out, that the plaintiff having sold and delivered to the defendants a large quantity of wheat, to wit, 600 bushels, at their special instance and request, they undertook and promised that they would pay him so much merchantable flour as the wheat was reasonably Worth, when they should be thereunto after-wards Requested. It then avers the worth of the wheat in flour, of which the defendants had notice; that the defendants had not paid the flour, nor any part thereof; but that the same or any part thereof, they had wholly refused and failed to pay, &c. On the calling of the cause, the plaintiff obtained leave to amend his declaration; and amended the second count by inserting in the breach, a demand of the flour on the —— day of-. In consequence of this amendment, the defendants moved for a continuance; which the Circuit Court refused to grant.
This motion for a continuance was founded on the 17th section of the act regulating the practice in the Circuit Courts; which among other things provides, that if the plaintiff obtains leave to amend his declaration, and makes the amendment in matter of form, the trial shall go on; but if he amends in matter of substance, the defendant may demand a continuance of the cause until the next term. Stat. 1817, p. 28
The judgment is reversed, and the proceedings subsequent to the motion for a continuance are set aside, with costs. Cause remanded, &c.
Acc. Stat. 1823, p. 295, — Turpin v. Scott, 5 Litt. 6.