9 Port. 518 | Ala. | 1839
The view we take of this case, will render it unnecessary to consider many of the questions which were argued at the bar. We are relieved from the necessity of considering, the propriety of the judgment of the court below, that the-defendant was in court after the discharge of the order appointing his guardians to conduct the cause during his lunacy, without any further process or act of the court ,to bring him in, as his subsequent appearance by attorney, was a waiver of the irregularity, if any existed. An appearance would cure a discontinuance, or supersede the necessity of showing that a writ had issued, it must, a fortiori, be sufficient, where the party is regularly in court, and his capacity to act been suspended for a limited period. It could not be tolerated, that a party should appear, litigate his rights before the court, and afterwards insist that he was not in court. The distinction which the learned counsel for the plaintiff attempted to draw between an appearance, after a defective service, or without service
We come nest to the consideration of the judgment-on the demurrer to the plea of the defendant. No other objection has been made to the plea, but that it is not verified by the oath of the party. In answer to this objection, it is insisted by the plaintiff’s counsel, that a plea-denying the validity of a deed, from the lunacy of the maker of the deed, is not within the statute requiring pleas of non est factum to be verified by the oath of the-party, but that the statute is confined to cases- where the1 execution of the instrument is denied, which,- by the plea in this case, it is said, is distinctly admitted ;■ and that the allegation in the plea, that it is not his deed, is merely the conclusion of law, from the fact of lunacy previously alleged.
As lunacy may be given in evidence,- under a plea of non est factum, it would seem to follow, that merely re-citing in the plea, the reason why the deed was not the act of the defendant, could not change the character of .the plea. But can effect be given to the law requiring the plea of non est fctctum to be sworn to, without requiring an affidavit of the truth of such a plea as the
A construction, that the Legislature merely intended to dispense with proof of the execution of the deed, would confine the law within narrow limits. It would not include the case of a deed, alleged by plea to have been delivered as an escrow — obtained by duress, or executed 'by an agent, if the statute can be evaded by pleading specially the facts which, if true, would render the deed null. The mischief, in such cases, would be equally as great, and, in many instances, greater, than that supposed to be the one designed to be prevented. Thus, if the deed sought to be enforced, be made by an agent, the knowledge of such agency may rest solely in the breast of the defendant, and if the agent were dead, the party claiming under the deed, would be without remedy : so, in the case of lunacy, the lunacy might be simulated; and if the plaintiff, in these and similar cases, can not apply through the statute, to the conscience of the defendant, he would be without redress. But it is argued, that it is absurd to suppose that a man should be required to swear that he had been a lunatic, as it cannot be presumed, that he could know what he did, or did not-do, when deprived of reason. It was precisely by such reasoning as this, that the courts anciently held, that a man should not be allowed to stullify himself; yet the reasoning, and the rule founded on it, has long since been exploded. In all cases in which a plea is required to be sworn to, it may be done, by the person swearing, to the best of his knowledge and belief.
The view - we are now taking, has been hitherto the
It is conceded, that the court had a discretion to permit or refuse permission to the defendant below to plead over, but it is supposed, that having given his permission to plead over, his power over the subject was exhausted, and that he could not revoke the permission thus given. If this be so, it must constitute an exception to the general rule, that a judge may change, alter or revoke his judgments, at any time before the adjournment of court. No reason can be perceived, why this rule, which applies to the most solemn judgments of the court, should cease to be applicable, when applied to matters admitted to be purely discretionary. To the proper administration of justice, full discretion must be vested in the presiding judge, in many cases, to be exercised by him, to effectuate the great ends of justice. This discretion, from the nature of the thing, cannot be reviewed in an appellate court, but must be exercised by him, as the exigency of the case may demand, under the guarantee afforded against abuse, by his official oath and judicial station, in connection with the constitutional remedy against oppression and injustice.
Many cases may exist, in which it would be the duty of the presiding judge to revoke a permission which he had granted, and which he might, in the first instance, have refused; whether he acted judiciously .or improperly in the case now before us, we have not the means of determining, nor would it be proper that we should .express an opinion.
There is no error in the record, and the judgment is affirmed.