1 Doug. 434 | Mich. | 1844
delivered the opinion of the Court.
The first ground assumed by the counsel for the relator, is, that the second amended declaration was irregularly filed, and that the motion to set the same aside should have been granted by the Circuit Court. Whether this position be sound or not, must depend upon the construction of the 27th general rule prescribed by this Court for regulating the practice at the Circuit. That rule is as follows: “ The plaintiff may at any time before the default for not replying shall be entered, if the plea shall be a special plea, or a plea in abatement, or within ten days after service of a copy of the plea if it shall be the general issue, amend his declaration. After plea, either party may, before default for not answering shall be entered, amend the pleading to be answered; and when there shall be a demurrer to a declaration or other pleading, such pleading may be amended at any time before the default for not joining in demurrer shall be entered. The respective parties may amend under this rule, of course, and without costs, but shall not be entitled so to amend more than once. Under this rule, new counts or pleas maybe added.”
Had the plaintiffs, then, a right to file the second amended declaration, as of course, under this rule ? The first amended declaration was filed under the special order of the Court granting leave to the parties to file new pleadings under the rules of the Court; that is to say, the plaintiffs
But a more serious question arises upon the return made by the Circuit Court. It is insisted by the counsel in be
I propose now to examine a few of the very many adjudged cases, both in England and in this country, on the subject of amendments. In the case of Maddock v. Hammet, 7 T. R. 28, it seems that a rule had been obtained, calling on the defendants to show cause why the declaration, which was in an action for usury, should not be amended by altering the times of payment of certain notes in which the charge of usury was alleged to consist. It was admitted that the statute of limitations had run, so that no new action could be commenced. Lord Kenyon, C. J., remarking that, “inasmuch as the amendment prayed for, was not to introduce a new substantive cause of action, but merely to rectify a mistake in setting out the notes,” permitted the same to be made. In the case of Dover v. Mestaer, 4 East. R. 435, an application was made to amend the declaration in a penal action. Lord Ellen-borough, C. J. remarked that, “if it had never been determined that any amendment could be made in penal actions, after the time for bringing a new”action was out, he should have doubted the propriety of allowing such an amendment for the first time,” &c. Lawrence, J. said that, “ the line which had been drawn in the former cases,
These authorities sustain the views laid down, both by Tidd and Archbold, and are deemed entirely sufficient to show the English rule in respect to amendments.
A reference to a few American authorities will now be made. In the case of Caswell v. Cooke, 8 Serg. & Rawle, 268, the court say, that “ the power of the courts under the act of 25th March, 1806, is not confined to mere alterations of form, but, in its terms, extends to every informality which will affect the merits of the cause in controversy;” and that “the true criterion is, whether the alteration or proposed amendment, is a new and different matter, — another cause of controversy; or, whether it is the same contract or injury, and a mere permission to lay it in a manner which the plaintiff considers will best correspond with the nature of his complaint, and with his proof, and the merits of the case.”
In the case of Hayne v. Morgan, 3 Mass. 208, Parsons, C. J. makes use of this language: “By the statute of 1784, a general power is given to the court to oi'der amendments on motion, without limiting the discretion of the court, as to the nature of the amendment, or the terms on which it may be ordered. The court have heretofore considered that an amendment, by which the plea was changed, as to alter a plea of the case to a plea of debt or trespass, was not within their discretion; for then it would be a different action.” “ So, to file a new declaration for a new cause of action, not contained in any of the original counts, has been refused. But all amendments of declarations, consistent with the natux-e of those originally made, and for the same cause of action, ax-e within the statutes.”
In Vancleef v. Therasson, 3 Pick. R. 12, it appears that
The cases cited show very conclusively, that, under the statutes of amendments, the rules of decision in England and in this country have been uniform and identical.
But there are other difficulties in the way of permitting the amendment in the present case. An action founded upon a statute, cannot be joined with an action at common law. 1 Com. Dig. 222, G. 1 ;• 16 Serg. & Rawle, 375. If this be true, I am unable to perceive how a party can abandon an action based exclusively on a highly penal statute, and substitute the common law action for money had and received. The action of debt, it is true, will lie in both cases. In the first case, the remedy by action of
The next question to be considered is, whether the remedy by mandamus is appropriate. We are not disposed to extend this remedy further than is warranted by the previous decisions of this Court, in which we have uniformly held, that a mandamus will not be awarded in cases where another remedy is provided by law.
In the present case, it is contended by the counsel for the respondents, that the appropriate remedy for the error complained of, was by writ of error, founded on exceptions taken to the opinion of the court below. This argument is founded on the following provision of our statute : “ Any party aggrieved by any opinion, direction or judgment of any Circuit Court, in any civil suit or action, when a writ of error shall lie to remove a judgment therein to the Supreme Court, may allege exceptions thereto, which being reduced to writing and presented to the court, before the adjournment thereof without day, and being found conformable to the truth, shall be allowed and signed by the judges of the court, and, on being filed, shall make a part of the record in the cause, if the pa,rty alleging such exceptions shall elect.” R. S. 383, § 16.
The motion to strike out the second amended declaration, and the decision of the court upon that motion, would not constitute a part of a common law record ; and the only question is, whether the motion and decision thereon, constituted a proper subject for exceptions, under the statute, so as to make them a part of the record in the cause.
The usual office of a bill of exceptions, is, to enable a party to avail himself of exceptions taken to “ any opinion, direction, or judgment” of a court during the trial of a cause; and it would certainly be a novelty in practice, to tender a bill of exceptions to a court, embodying the “ opinion, direction, or judgment” of the court upon a motion to strike from the files a declaration for irregularity.
In the case before us, whether the motion to strike out the declaration, should, or should not have been granted, depends upon the construction of the 27th general rule. It was a motion not addressed to the discretion of the
Mandamus granted.