50 Ala. 71 | Ala. | 1873
Very clearly, the amendment in this case should have been permitted. The right to amend the complaint is absolute, and not merely discretionary. The language of the statute is peremptory; and it should be allowed even after the evidence has been closed, and the argument concluded, and the jury have been instructed. Prater v. Miller, 25 Ala. 320. The power to amend should be very liberally exercised. Crimm's Adm'r v. Crawford, 29 Ala. 623. Here the parties remain the same, and the cause of action is the same ; but the first complaint failed to show a right of action in the plaintiff. This was merely a defective allegation of title in the plaintiff. Such defect is amendable, and should have been allowed. Rev. Code, § 2809.
The court below erred, therefore, in refusing to allow the amendment, as shown in the bill of exceptions. 1 Brick. Digest, p. 76, §§ 98 et seq.
The judgment of nonsuit is reversed and set aside, and the ' cause is remanded for a new trial.
