1 Stew. 184 | Ala. | 1827
delivered the opinion of the Court.
In this case I am of opinion, that the demurrer to the plea puis darrien continuance was properly overruled; that the instrument of writing which the plea avers to have been accepted by the plaintiffs in satisfaction of the action, must conclude them, and that it virtually dismisses their action. The plea was clearly good and sufficient.
It was also, regular to permit the defendants to amend their plea, which may he done at any time before trial. I think therefore, that the judgement below should be affirmed. In this opinion the Court are unanimous.
There are two questions as to the amended plea: 1. Could the plea properly be amended? 2. Was the amended plea properly pleaded ?
First. At common law, the power to amend pleadings was very limited. Judgements might be amended at the same term when rendered, because they were considered in fieri and not of such high solemnity, till the adjournment of the Court, when they became consummated. But Courts did not permit pleadings to be amended; the utmost nicety was required, and any omission, however small, was held fatal to the action or defence. We cannot look to adjudications on statutes in England or our sister States for an alteration of this law, unless their statutes of amendments are the same as ours.
This amendment was permitted after verdict, judgement and new trial, at the instance of defendants. We believe that under our statute, no amendment can properly be made after trial, except in the judgement. This is inferred from the statute itself.
The statutes of amendment do not extend to pleas puis darrien continuance. Those pleas are always received with great caution, and much strictness is required in drawing them. In this they are similar to pleas in abatement, which according to all authorities, are not within the statutes of amendments. It may well be questioned if those statutes extend to any but pleadings in the ordinary course. The plea puis darrien continuance being extraordinary, is, I am inclined to belieye, not reached by
There can be but one pleapluis darrien continuance'.
Second. A plea puis darrien continuance must be plea~ dcd before a continuance intervenes after the matter of it arises.
The amended plea was filed after the intervention of a continuance, and as every amended plea is to be considered as a new plea, and as this is only to be considered as pleaded from the time when verified, (for till then it was a nullity,) we must conclude the Court erred in not rejecting it. No fiction can make it relate back to the time when the first one was pleaded, for fictions cannot be made to operate against fact; they can only be applied to further the design for which they were instituted.
It is true, the statute seems in the last clause to give very general powers to the Court, but the latter words are to be controlled by the previous special words ; and if so it is clear. Matters of substance are not amendable unless there be on the record something to amend by.
Motion for rehearing denied.
Laws Ala.451,
5 wm. Bit. Rep, jwojR'um.Ejeut,
Burrows r,
■■> Bacon Ab. 478.
4 Crunch, 228. See Arg. of Martin and Ref.
t Haywood, 104. 2Wiis.l37.l Str. 493. Salk. 178. Ld.RayM.O03. 5 Bac. 477.
3 Burr. 1243. Pennington,229, 2 Day,252,2Wilson, 137.