8 Watts 460 | Pa. | 1839
The opinion of the Court was delivered by
The granting and refusal of amendments at common law, are so much in the discretion of the court, as not to be the subject of error. Thus, in Burke v. Herber, 2 Watts 206, it is ruled, that it is not error to refuse to permit a plaintiff to amend his declaration, after a judgment o/ demurrer against him. It is there said, on the authority of Renniger v. Thompson, 6 Serg. & Rawle 2; and The King v. The Mayor and Burgesses of Grampond, 7 Term Rep. 699, that matters in pure discretion are not the subject of a writ of error; that amendments, by the inherent power of the court, are reducible to no certain rule, each particular case being left, on its own circumstances, to the mere discretion of the court. But this principle does not apply to amendments prescribed by the act of 1806. The act prescribes, that no plaintiff shall be nonsuited for any informality in any statement, or declaration filed, or by reason of any informality in entering a plea; but when, in the opinion of the court, such informality will affect the merits, the plaintiff shall be permitted to amend his declaration or statement, and the defendant may alter his plea or defence, on or before the trial of such cause. And if by such alteration or amendment, the adverse party is taken by surprise, the trial shall be postponed to the next court. The intention of the legislature evidently was, to prevent a plaintiff being put out of court by. any informality in the pleadings, and to secure to each party, a full opportunity of trial on the merits. For this reason it was ruled that amendments under the act, are mandatory and not discretionary, and hence a refusal to allow an amendment was the subject of error. This has been decided in Young v. Cam, 2 Binn. 68; Glazier v. 8 Serg. & Rawle 498; Mann v. Montgomery, 10 Serg. & Rawle 192; Newlin v. Palmer, 11 Serg. & Rawle 98. All these are cases where the court refused to allow the amendment, and thereby deprived the
■ It has been suggested that damages may be recovered, in this action, from the death of the husband until the death of the widow. Dower being areal action, no damages were recoverable, at the common law, by the wife for the detention; but this defect was remedied by the statute of Merton, which gives damáges to the widow to the amount of the whole dowe.r, from the time of the death of the husband until the day that the widow, by the judgment of the court, recovers seisin of her dower. Parke on Dower 301. The danjages are á consequence, or an incident, of the judgment, and can only be assessed when there is a judgment of seisin. At law, the widow loses her damages if the tenant dies after judgment and before they are assessed; and also, the damages are lost to her personal representatives, if she herself dies before the damages are ascertained. This is at law,'but a different rule prevails in equity.
Judgment affirmed.