2 Rawle 213 | Pa. | 1828
The opinion of the court was delivered by
— The amendment was rightly permitted. We hold the law to be, that in no case can a continuance be demahded by reason of an amendment, unless when the opposite party is thereby taken by surprise:, and of that matter, generally, the court below must judge. Here, it doe’s not seem, that any immediate, trial was intended. All that was .asked for at the time, was, that the administrators should defend in the original action. The plea of nul tiel record, was certainly one which the defendants below had a right to put in.to the Scire Facias: But it was a plea for the court to decide on by inspection; and, ’we think, they virtually did decide it against the defendants correctly. To the Scire Facias the defendants might also have pleaded, that they were not administrators: they might have objected want of due notice on the summons, or relied upon any fact, to show, that they ought not to, be put into the cause, and compelled to stand in the former place of the intestate: but they offered nothing of the kind. The plea, that if there was any record of any suit, it- was.of a suit against Rogers and Huggins; that they both appeared, .and pleaded to it; that Huggins died, and that Rogers was still -living, was completely inadmissible. ■ It was multi»
Judgment affirmed.