Gordon v. Downey , 1 Gill 41 ( 1843 )

Dorsey, J.,

delivered the opinion of this court.

We think the county court erred in arresting the judgment on the verdict rendered in this case, notwithstanding, it is our opinion, that the chose in action, assigned in this case, is not such a chose in action as would, under the act of 1829, ch. 51, entitle the assignee, standing upon the assignment only, to the maintenance of an action in his own name. It was not the intention of the legislature to confer on the assignee any such power, except in cases where the chose in action was purely “for the payment of money,” and where the only action which, from the nature and stipulations of the chose in action assigned, the assignor could have maintained, if no assignment had been made, was that for the payment of the money due on the contract. It never was intended that the assignor should transfer to the assignee a complete right of action, to be prosecuted in his own name, and at the same time retain in himself, under the same chose in action, a power to sue for the breach of stipulations, not for the payment of money. But in the first count in the declaration filed in this case, there is an allegation that the defendant, after the assignment, and after the money became due, promised to pay it to the plaintiff, which promise would authorise him to sue for it, as he has done, whether the assignment be legal or equitable, and whether the act of 1829 had ever passed or not. The verdict, it is true, was rendered by the jury on the first and third counts in the plaintiff’s declaration; the latter of which contains no such promise to pay. But by the second section of the act of 1809, ch. 164, it is enacted, “that where any verdict shall be given in any action, suit or demand, in any court of record of this State, the judgment thereupon shall not be stayed or reversed for any defect of form or substance in any writ, original or judicial, or for any variance in such writ from the declarations or other proceedings, nor for defects in any count in the declaration, so that there be one good count.”

The county court erred in withdrawing from the jury, under the second count in the declaration, the agreement between James M. Downey and James Downey, senior, that count having charged a promise of payment by the defendant to the plaintiff, as having been made after the assignments in evidence before the jury. And for aught that appears to us, but for such withdrawment, the promise, as laid, might have been proved. The bill of exceptions does not state or show that the plaintiff had closed the testimony on his part.

In virtue of the act of 1831, ch. 319, this court are required in appeals from all the counties therein enumerated, (of which Washington county is one,) to decide upon all the bills of exceptions, taken at the trials below, whether appealed from or not. It becomes our duty, therefore, to inquire whether the county court were right in refusing the application of the defendant, to withdraw the general issue and pul in a general demurrer to the plaintiff’s declaration.

On behalf of the appellant it has been insisted, that on awarding a new trial, no amendment of the pleadings can be allowed, at the instance of the party on whose application the new trial was granted, no matter with what urgency the appeals of justice might demand it. For this broad proposition no authority has been cited; and we do not think it consistent with the 4th section of the act of 1785, ch. 80, which declares, “that the courts of law shall have full power and authority to order and allow amendments to be made in all proceedings whatsoever, before verdict, so as to bring the merits of the question between the parties fairly to trial; and if amendment is made after the jury is sworn, a juror shall be withdrawn.” When the verdict is set aside, and a new trial awarded, the case, as far as amendments are concerned, stands as if no trial had ever been had. But an application for an amendment of pleadings, is not a demand of a matter of right, but is an appeal to the sound judicial discretion of the court, and to be granted when it shall appear necessary to bring the merits of the question, between the parties, fairly to trial. In this case there was nothing to shew the existence of such necessity, or that the amendment if made, would have given the defendant any defence to the action, to which he would not have been entitled in the condition in which the pleadings then stood. Conceding, then, the affirmative of the proposition, (on which we mean to express no opinion,) whether an appeal will lie, from the decision of a court exercising its discretion in allowing or refusing an amendment of the pleadings, we think the refusal to permit the defendant to make the amendment asked for, was no ground for a bill of exceptions or an appeal, the defendant having sustained no injury from the decision of the county court, of which he complains.

Dissenting from the course pursued by the county court, as stated in the bills of exceptions of both appellant and appellee, and also dissenting from its decision on the motion in arrest, wm reverse its judgment.

JUDGMENT ON THE VERDICT AND AWARD.