Trinder v. Durant, 5 Wend. 72

Trinder v. Durant

5 Wend. 72 | N.Y. Sup. Ct. | 1830

By the Court,

Savage, Ch. J.

It is objected that pleas in abatement are not amendable. Such pleas are always discouraged, being dilatory and not going to the merits of the action.

The only reported case I have been able to find on the question is Lyde v. Heale, Prac. Reg. of Com. Pleas, 21, decided Easter Term, 12 Geo. 1. The defendant pleaded in abatement another action pending, and, in setting out the record, instead of saying non fuit culpabilis per vilium scriptoris, it was said non fuit capilalis. A motion to amend was denied, because, as appears from the argument of counsel, a matter in abatement must be pleaded without an imparlance, and an amendment is in the nature of an imparlance.

*74Mist treaties on practice have said that pleas in abatement are not amendable. 1 Crompton, 127. 1 Sellon, 275. 2 Archb. 230. 1 Dunlap, 441,2. Our revised statutes declare, in broad terms, that the court, shall have power to amend any process, pleading or proceeding, either in form or substance, for the furtherance of justice, &c. This xvas not intended, I apprehend-, to change the practice which before was usual as to amendments. The motion must therefore be denied, but without costs.