36 Miss. 702 | Miss. | 1859
delivered the opinion of the court.
This suit was brought, by the defendant in error, against B. W. Brewer and the plaintiff in error, as partners under the firm name of Brewer & Rowland. The writ which issued in the case was
And it is now assigned for error, first, that the plea denying the alleged partnership was stricken out; and, secondly, that the plaintiff in error was refused permission to amend the pleadings.
The court erred in both instances. The term at which the pleas were filed, — that is, the June term, 1857, — as to the plaintiff in error, was the return term, the writ not having been executed upon him at the previous term of the court. Hence, under the Pleading Act, then in force, the plaintiff in error had an undoubted right, without leave, to plead; and, of consequence, was entitled to file any plea which was a proper defence to the action. Beyond question, he had the right to amend his pleading; in fact it was the duty of the court, if the pleadings were defective, to order them to be so amended as to bring the merits of the controversy fairly before the court and jury.
It seems probable that the court, in ordering the plea to be stricken out, did not proceed upon the ground that the party had not then the right to plead generally, but upon the ground that the plea ordered to be stricken out, was inconsistent with the plea of the general issue previously filed, which was, in effect, an admission of the partnership as alleged in the complaint. If such, in point of fact, was the principle on which the court acted, without doubt it acted upon an improper construction of the rules of practice in this State. A defendant is entitled to rely upon any matter which constitutes a valid defence to the action; and, as a general rule, it is no objection to a plea, that it sets up, as a defence, matters inconsistent
Let the judgment be reversed, and the cause remanded.
