1 Mass. 50 | Mass. | 1804
declared himself in favor of allowing the amendment, as being within the rule, and agreeable to the practice of the Court in such cases. [See the rule (to which Thacher, J., referred) in the case of Tappan and Austin—ante, p. 32.]
I do not found my opinion on the English authorities, but on the rule of this Court. *The [ * 51 ] rule is express, “ that in all cases, excepting after joinder and demurrer,” (which is not the present case,) “ the plaintiff shall have leave to amend his writ and declaration,” upon the terms therein mentioned. This rule I consider as binding on the Court, and that we cannot refuse the amendment. If the rule is not a proper one, let it be altered ; but standing as jt does, I do not see how we can deny the plaintiff’s motion. To attempt to discriminate the subject of the rule as applicable to different cases, would be extremely inconvenient. The plaintiff is rectus in curia, and by the terms of the rule is as much entitled in this case to the amendment prayed for as he would be in any other. But it is said, that he has already, in the Common Pleas, been allowed to amend his declaration. Such a circumstance has never been considered as controlling or influencing the practice in this Court. As I have never known an instance where a similar application has, since the establishment of the rule, been refused, I am clear that the motion ought to prevail.
The power of the Court in granting amendments where there is no provision by statute, is a discretionary pciver, which supposes that the Court can and will distinguish cases. The Court cannot help seeing what the present case is. The power of the Court in granting new trials is a discretionary power; and is
The question before the Court is not a general question ; but simply whether, in this particular case, and under the special circumstances of this case, the Court will, in their discretion, permit the amendment prayed for. I consider the power of the Court in this case to rest entirely at common law, and therefore to be a discretionary power. I have no doubt of our power to allow amendments in qui tarn as well as in other actions. But when our power is discretionary, we must go into the nature and circumstances of the case, in order to exercise that discretion properly. This is a qui tarn action, brought to recover a penalty given by the statute made against taking excessive usury; which is not an action [ * 53 ] where substantial justice requires an amendment. *Here a stranger is suing. The party supposed to be injured, acquiesced and paid the debt. The statute requires the action to be brought within one year; this was done. But the plaintiff, finding his declaration wrong, had liberty in the Common Pleas to amend it, by which the defendant was there holden to answer anew. H is declaration is still wrong; and now the aid of this Court is
The Court being equally divided, the motion did not obtain
A penalty given by statute is a debt created by the authority of the highest power in the state, the right to recover which is vested in the person first suing therefor. Now, to distinguish this from a “just debt." or a “fair and equitable demand,* seems to be calling in question the wisdom if not the equity of the legislature, in a case where they have acted within the acknowledged limits of their powers. Every legal claim must in a court of law be enforced, and it may be doubted how far it is consistent with the duty of the court to execute the act of the legislature, to throw peculiar embarrassments upon the prosecution of claims sanctioned by an express statute. If an act be unjust or impolitic, its injustice or impolicy will be soonest discovered and corrected by its unimpeded operation.