3 Vt. 265 | Vt. | 1830
delivered the opinion of the Court. — There can be no doubt that the amendment granted by the court below was improperly allowed. The statute declares, that before the issuing of any writ, sufficient security shall be given to the defendant, by way of recognizance, to the satisfaction of the authority signing the writ, that the plaintiff shall prosecuté his writ to effect ; a minute of which recognizance, with the name of the surety, and the sum in which he is bound, shall be made upon the writ, at the time of signing thereof, and signed by such authority ; and if any writ he otherwise issued, the same, on motion, shall be abated. — (Comp. Stat. p. 70. 5.44.) From this provision, which is positive and peremptory,it is obvious,that where either the name of the'surety, or the sum in which he is bound, is omitted in the minute of the recognizance upon the writ, the court have no power to amend the defect. And we have already decided, that though the granting of an amendment, when within the discretion of the court, is not subject to revision here, yet if an amendment
But no exceptions appear to have been taken by the defendants to the allowance of the amendment,nor was there any judgement of the court below upon the plea im abatement; and, under these circumstances, it must be considered that the amendment was submitted to,and the plea in abatement waived,especially as-the defendants were not obliged toanswcrfurther,and plead to the merits,as they did, without a judgement of respondeos ouster. In Burnham vs. Webster, (5 Mass. 266,) where the defendant, after pleading in abatement, without a judgement oí respondeos ouster, voluntarily pleaded to the action, it was held, that this amounted to a waiver of his plea im abatement, which roust be considered as if it had not been filed. If the plea in abatement was superseded by the amendment,and a judgement upon it was thereby rendered unnecessary,the defendants,if they did not mean to submit to the amendment,should have filed their exceptions,stating the motion to amend, and the decision of the court upon it. But not having done this, it must be taken that the amendment was acquiesced in; and there being no judgement in the case, upon any question of law arising upon the pleadings,there appears to be no error in the proceedings of the court below, which we can notice, or the defendants can now avail themselves of.
Judgement affirmed.
