Wharton v. Franks , 9 Port. 232 ( 1839 )

GOLDTHWAITE, J.

The plea in abatement denies, in effect, the legal sufficiency of the first count of the declaration, to charge the defendant, because it does not precisely correspond with the endorsement on the writ. By pleading this matter in avoidance of the action, as instituted, the defendant insists, that he has the right to compel the plaintiff to declare against him for a cause of action previously, and specifically described. It is obvious, that if this plea is allowed, it will be idle to talk of the discretionary power of the courts to allow amendments of the declaration, as without the consent of the defendant, they can never go beyond the endorsement of the writ, or permit a mere mistake to be corrected.

The statute which requires the endorsement on the Writ, was not intended to introduce any new rule in relation to the manner of pleading, or to confine the discretionary powers of the courts in relation to them. It merely dispenses with the service of a copy of the declaration with the writ, which previously to its enactment was required — (Aik. Dig. 278.) If we consider the endorsement as subject to the same rules which prevailed before, With regard to, declarations, we give complete effect to this statute, and do no violence to' any rule of construction. It cannot be supposed, that it was the intention of the general assembly, when it dispensed with the service of the declaration, to introduce a rule which would be, if as contended for,by the defendant below, infinitely more harsh and oppressive.

No one can doubt the power of the courts previous to this statute, to permit an amendment conformable to the justice of the case : if a mistake similar to the one committed in the endorsement on the writ, had been made in a declaration, its correction would have been a matter of course.

As the defendant has pleaded to this declaration, we would presume, if it was necessary, that the leave of the court had first been obtained.

The case of Johnson vs. Perry, (4 Stew. & Porter, 49,) which determines that the- omission of an endorsement on a writ, is fatal, when properly pleaded in abatement —does not touch this question. The omission of a declaration would be fatal, yet no one questions the power of the courts to authorise an amendment. In relation to the whole subject matter of pleadings, the Circuit courts must necessarily exercise a just discretion ; if the declaration does not substantially correspond with the process, they can set it aside on motion, or if for any cause it becomes necessary to amend or substitute other counts, they are invested with the authority so to do, and the exercise of their discretion will not be reviewed.

It is impossible to conceive that the courts will countenance amendments oppressive in their consequences, or refuse those which are necessary to advance the justice of a cause.

The plea in abatement camíot be sustained, and the judgment on demurrer should have been in favor of the plaintiff below.

The second count in the declaration is bad, and the demurrer to it very properly sustained. The objection to it is, that it is an attempt to innovate on settled and well established forms. It is true, that money may be laid out for another, which the law will imply to have been laid out at his instance, but we know of no case in which a declaration has ever been allowed, without charging the legal implication in direct terms. What the circumstances are, from which the legal implication arises, should be stated, and the court can then determine if they are sufficient in law ; but here the plaintiff undertakes to charge the defendant, without a statement or allegation of facts from which a legal implication can arise.

Let the judgment be reversed, and judgment of respon-deos ouster here entered, and the cause remanded for further proceedings.