State v. Bryant

5 Ind. 192 | Ind. | 1854

Davison, J.

This was an action of trespass quare clausum fregit. The declaration was originally filed in the name of the state, for the use of the inhabitants of congressional township number 21, in range number 3, &c. It contains two counts, in each of which the defendants were charged with having broken and entered a certain school-house belonging to district number 7, in township number 21, of range number 3, &c. Two pleas were pleaded to the first count, which led to issues of fact. To the second count there was a demurrer sustained.

At this stage of the proceedings the plaintiff moved for leave to amend the declaration, by striking out the words “for the use of the inhabitants,” and inserting in lieu thereof “for the use of school district number seven.” Leave was granted, and the declaration amended accordingly. This amendment, however, produced a variance between the declaration as amended and the writ; and on account of that variance the defendants moved to set aside the declaration. Pending that motion the plaintiff asked leave to amend the writ so as to conform with the amended declaration. This the Court refused; but the defendant’s motion was sustained; the declaration was set aside; and judgment given against the plaintiff.

D. Mace, for the state.

The Circuit Court very correctly permitted the plaintiff to amend her declaration; and we think an amendment of the writ should also have been allowed. ' An act in force at the time of these proceedings, provided that “the Court in which any action is pending may give leave to amend any process, pleading, or proceeding in such action, either in form or substance, for the furtherance of justice.” R. S. 1843, c. 40, s. 228. That provision evidently applied to the case before the Court. From the amendment of the writ no injustice could have resulted to the defendants. They had filed pleas to the merits, upon which issues of fact were raised. No doubt they were sufficiently apprised of the commencement and pendency of the suit. It appears to us that the “furtherance of justice” required the Court to grant leave to amend the writ. 8 Blackf. 5.—1 Ind. R. 17, 54.—3 Ind. R. 216.

Per Curiam.—The judgment is reversed with costs. Cause remanded, &c.